Concerned Citizens Movement questions deviations in Smartmatic-TIM-Comelec contract

The Concerned Citizens movement today filed a Supplemental Motion for reconsideration from a decision of the Supreme Court upholding the legality of the COMELEC- Smartmatic Automated Election Systems.
In a 25 page motion, CCM singled out two new grounds both of which arose from “supervening events” since the High Court dismissed the CCM Petition against the COMELEC. The grounds alleged by CCM are as follows:

I. Comelec/Smatmatic will not be able to comply with the July 10, 2009 because of their failure to provide telecommunication facilities –both satellite and land-based- that will assure one hundred per cent communications coverage at all times during the conduct of the 2010 general elections as stated in the contract.

2. Smartmatic resorted to subcontracting to manufacture the Precinct Count Optical Scan machines in question, first to JARL-Tech, and now, to a Chinese company known as Quisdi, violates not only the Comelec’s own bidding rules but also Republic Act 9184, the government’s New Procurement Act.

The first ground is due largely to recent study conducted by NBN-ZTE whistleblower Jun Lozada who was commissioned by the religious providing him sanctuary to review the automation contract. One important finding arrived at by Lozada was a failure of Smartmatic to provide a budget for satellite communication despite Smartmatic’s bid and the requirement of the COMELEC that it should provide satellite communication to areas of the country with no GPRS telecommunication facilities. “This failure of Smartmatic to provide a budget for satellite communication despite its knowledge that the country does not have nationwide GPRC telecommunications facility proves that it would be impossible for both the COMELEC and Smartmatic to provide for 100% automated elections in 2010”, Lozada claimed.

The second ground is based on pronouncements made by Smartmatic that it has changed the manufacturer of the PCOS machine. Originally, the manufacturer, Jarltech of Taiwan, was allegedly majority owned by Smartmatic. The requite ISO certification, to ensure the manufacturer’s reliability and Environmental Clearances were in the name of Jarltech or its sub-contractor, Kenmech. “This change in manufacturer violates the procurement law and the COMELEC’s bidding rules as it is tantamount to sub-contracting. This practice is not allowed because obviously, we need to hold the manufacturers directly liable to answer for product warranty defects. This change in manufacturer is also a major change in the contract specifications required by the COMELEC in its request for proposals. If allowed, it would be most unfair to the losing bidders and the Filipino people as it is as if the contractor was allowed to dictate new terms of contract when a bidding is precisely to ensure that the people enjoy the best terms and conditions of contract pursuant to specified requirements”, declared Atty. Harry Roque, Co-convenor of CCM.

The automation project is already very much delayed on the basis of the timeline submitted by the COMELEC to Congress. Under the contract signed between the COMELEC and Smartmatic, delivery of the PCOS machines should commence this month of November. Full delivery should be made by January, 2010. Smartmatic also opted to change its original logistics provider, 2GO, with several other regional logistics company. “All these fundamental changes in contract do not bode well for the ability of Smartmatic and the COMELEC to conduct the first ever nationwide automated elections system. I urge the COMELEC now to be prudent and faithful to its constitutional mandate and declare at the earliest time its inability to proceed with full nationwide automation”, Roque added.

CCM has consistently maintained it is not against automation per se., but is against an “automated failure of elections” where an untested automated system is implemented without partial implementation. “We urge the COMELEC to opt for partial automation in 2010 so that it can implement a full automated elections system in 2013. This, after all, is what the law provides”, Roque added.