Fait accompli

In less than a month, on Feb. 2, Commission on Elections Chair Sixto Brillantes is to retire, along with Commissioners Lucenito Tagle and Elias Yusoph.

Ordinarily, high-level officers of any organization who are on the way out are expected to desist from making any large-scale decisions in the last days of their term, to avoid tying the hands of those coming in after them, and presenting the organization itself with a fait accompli that may carry complications, even irregularities, given the hasty nature of the transaction. That is even more true in government, where “midnight deals” by departing officials are expressly prohibited by law to ensure basic transparency.

So what were Brillantes, Tagle and Yusoph thinking when, along with two other commissioners, they voted on one of the most consequential and contentious issues facing the Comelec—the contract on who would refurbish the 80,000 computer machines to be used in the May 2016 presidential election—a mere one month and 10 days before they vacate their posts?

Shouldn’t they have deferred the decision they made on Dec. 23, when the public was wholly distracted by the holiday rush, to the incoming set of commissioners? Three heads, after all—one of them the chair himself—constitute a powerful swing block in any show-of-hands decision. But no: The gentlemen went ahead with their eyebrow-raising vote.

Brillantes’ reason for the seemingly inordinate rush to seal the deal? That there would be no more time if the project were to go through more discussion beyond Dec. 23. Worse, because of the alleged delay, “there will no longer be a public bidding on this,” he said.

Unannounced voting, rushed decision, no public bidding. Any way you look at it, the Comelec’s recent vote to award the computer refurbishing contract worth P1.2 billion to Smartmatic Total Information Management Corp. smacks of a midnight deal. But that’s not even the worst of it. Over and beyond the sheer impropriety of holding the vote under such dubious circumstances is the questionable recipient of the Comelec’s goodwill: Smartmatic, a company that has been mired in controversy over the well-documented glitches of its precinct count optical scan (PCOS) machines, and the technology used to run them, from as far back as two national polls ago.

Smartmatic had the temerity to warn the Comelec early in December against tapping another firm to do the PCOS repairs, claiming that it had exclusive rights to the parts required for the refurbishing. Any government agency with an ounce of self-respect would have bristled at that kind of impertinence by a service provider, but the Comelec under Brillantes seems to be an unabashed fan of Smartmatic.

The Comelec was the first to take up the cudgels for the firm when many of its machines were conking out right and left in past elections. It routinely awarded contracts for the various phases of the automated polls to the Venezuela-based company, even as Smartmatic was battling serious questions of legitimacy abroad (it was sued by the Canadian Dominion Voting System over the ownership of the system used to run the machines).

This time, Smartmatic appears to have gotten another sweet deal from the Comelec, to the tune of P1.2 billion. Brillantes has subsequently disputed that, saying: “We awarded them only the first portion, which is the P300 million maximum contract, not the P1.2 billion.” The second and third stages of the three-part contract worth P900 million will be earmarked “for the actual repair and maintenance of the machines,” he said.

Can it be? A whopping P300 million, and still no “actual” repairs? Take it from Brillantes himself: “We are only entering into a contract for the diagnostics examination and minor repairs for a maximum of P300 million.”

How do we even know all these estimates are sound? We don’t—because the entire process, capped by the ditching of any public bidding, has been done apparently with the end view of short-circuiting the normal requirements for transparency and open review. The Comelec’s legal department itself questions the process, saying that any automatic, no-bid recourse to Smartmatic for the project is “a clear example of direct contracting or single-source procurement” that has to satisfy the stringent requirements of the law for such special transactions.

But Brillantes et al. ignored even their legal department. “Anomalous” is a mild word for their Dec. 23 fait accompli.