MANILA, Philippines – Two commissioners of the Commission on Elections (Comelec) said that public bidding is still the best option for repairs of precinct count optical scan (PCOS) machines that will be reused in the 2016 elections.

The two, Commissioners Tito Luie Guia and Arthur Lim, did not favor directly contracting Smartmatic-Total Information Management (TIM) Corp.

The Comelec voted 5-2 to approve the P300-million Program 1 of Smartmatic’s extended warranty proposal to conduct examination, diagnostics, and some minor repairs on the existing 82,000 PCOS machines, through Comelec Resolution No. 9922, dated December 23, 2014. (READ: Why Smartmatic got deal for PCOS repairs)

In his dissenting opinion, Guia said the Comelec’s own IT personnel should perform the PCOS repairs, citing “transfer of technology” from Smartmatic to the poll body when it purchased the voting machines in 2012.

“It is assumed that after two automated elections [in 2010 and 2013], the personnel of the Commission should have already acquired the necessary knowledge, skill, and expertise to perform basic maintenance, diagnostic, and repair works on the PCOS machines.”

Even if the in-house IT personnel would not be able to perform the refurbishment, Guia said the Comelec could not resort to direct contracting with Smartmatic just yet.

“I am not convinced that resorting to alternative procurement is fully justified at this point,” said Guia, who argued that the majority “placed great weight on the representations of Smartmatic-TIM” which were, at best, “self-serving.”

“Their claims need to be independently verified. Otherwise, it cannot give the Commission sufficient basis and legal justification to resort to alternative modes of procurement,” explained Guia.

Therefore, the commissioner said, “open competitive bidding remains to be the best option for this Commission after in-house repair. Not only does it ensure that the law is observed, it also affords the Commission the opportunity to obtain lower prices for the services or products being procured.”

A public bidding, added Guia, ensures competitiveness by leveling the playing field, and diminishes the possibility of a single supplier controlling the price and conditions of the repairs contract. (RELATED: Poll watchdog opposes Comelec-Smartmatic deal)

As for the lack of the time to conduct a public bidding, Guia argued that timelines could, “in fact, be altered so that the substantive goals of a project are met. The ultimate goal of running an election is to produce results that are accepted by the people.”

Finally, Guia said that an open competitive bidding provides transparency in the procurement process, as it is the “key to gaining public trust and confidence in elections.”

Lim: Public bidding if timeline allows it

Meanwhile, in his separate opinion, Lim said that the lack of sufficient time to push through with a public bidding “is not among the circumstances that will allow resorting to an alternative method of procurement.”

In addition, he argued that the Comelec in hindsight should have anticipated Congress’ move to disapprove during national budget deliberations the poll body’s plans to buy brand new voting machines.

“Would it have made a difference if preparatory activities [for the 2016 polls] had been undertaken right away on the anticipation that the proposed [P26-billion] budget would not be approved as a matter of course and we would have to use the existing machines?”

Lim also agreed with the Comelec law department’s recommendation that all means must be exhausted to ensure that the procurement of PCOS repairs is fully compliant with Republic Act 9184, or the Government Procurement Reform Act.

The risk of contracting a third-party provider for repairing the PCOS machines, Lim said, “is properly addressed in a public bidding, where interested providers will be able to show how they will conduct the repair.”

In addition, Lim argued that the contract refers to the refurbishment service of the machines, and not the machines themselves. Therefore, the service of repairing the machines “is not subject to any patent or copyright. Instead, it is the automated election system itself that incorporated proprietary licensed technology.”

Lastly, Lim said that the P300-million proposal “still entails quite a sizeable cost to this Commission.” A public bidding would be the way “to determine whether this cost is truly advantageous to the government, or if there are other cost-effective measures present in order to repair and refurbish our PCOS machines.”

In qualifying his vote, Lim opted for the public bidding if the timeline allows it. “This was both to assert a legal argument and to recognize that a pragmatic approach cannot now be avoided if it be true that the timeline is too restrictive” that it would cause delays in the preparations for the 2016 polls. – Rappler.com