Smartmatic asks SC to dismiss blacklist petitions against it

MANILA, Philippines – Election software supplier Smartmatic-Total Information Management (TIM) Corporation has asked the Supreme Court to dismiss two petitions seeking to blacklist it from getting contracts for the 2016 national and local elections.

In a 105-page consolidated comment, filed on February 16 but publicized on Thursday, February 26, Smartmatic asked the SC to deny the petitions of watchdogs Citizens for Clean and Credible Elections (C3E) and Automated Election Systems Watch (AES Watch) because they lacked merit.

The C3E and 7 other cause-oriented groups sought to blacklist Smartmatic-TIM from participating in procurements for the 2016 polls and other government projects for at least two years. They asked for a temporary restraining order (TRO) on the award of any contract by the Commission on Elections (Comelec) to Smartmatic, as well as on the conduct of public biddings for more voting machines.

Meanwhile, the AES Watch asked the High Court to declare Comelec Resolution 9922 as void ab initio (from the start). It claimed that the said resolution violated the Government Procurement Reform Act for directly contracting with Smartmatic instead of conducting a public bidding for the refurbishment of the precinct count optical scan (PCOS) machines that will be reused in 2016.

 

Smartmatic said that both petitioners have no legal standing to file the petitions, and their petitions were filed out of time. C3E “did not exhaust the administrative remedies before filing a petition for certiorari, prohibition, and mandamus” before the SC, Smartmatic said.

The Venezuela-based technology provider said C3E’s blacklisting complaint was “baseless.” It denied committing misrepresentation in its documents during the bidding of the AES contract in 2009.

Smartmatic claimed that it was the majority shareholder of Jarltech International Corporation, its subsidiary which manufactured the PCOS machines.

The Comelec was also informed of the transfer of the production area of the voting machines from Kenmec Mechanical Engineering Company to Qisda Corporation in Taiwan due to typhoons. C3E had claimed that this supposed violation of the contract was concealed from the poll body.

Smartmatic also said that it did not subcontract its obligations in the AES contract, and did not breach or fail to deliver any of its warranties to the Comelec.

In addition, it believed that the Comelec and its bids and awards committee (BAC) “did not commit any arbitrary or despotic act that would amount to grave abuse of discretion” when C3E’s first plea to blacklist Smartmatic from 2016 poll procurements were junked in December 2014.

As for the AES petition, Smartmatic said that it was “fatally defective in form and substance” because it lacks the requirements for it to be deemed a valid petition for prohibition.

It likewise argued that the Comelec “did not gravely abuse its discretion” when the poll body resorted to direct contracting with Smartmatic for the repairs on the PCOS machines.

Smartmatic claimed that the issuance of a writ of preliminary injuction or a TRO “will cause greater damage, because this will impede the Comelec’s preparations for the 2016 elections, to the prejudice of the government and more significantly, of the voting public.”

The diagnostics and repairs on the PCOS machines cost P268.8 million, and was signed by former Comelec chairman Sixto Brillantes Jr before his retirement from the poll body in February.

A 3rd petition against the Comelec-Smartmatic deal was filed before the SC by the Integrated Bar of the Philippines (IBP) on February 19.

Deportation

Meanwhile, the C3E sought the deportation of Smartmatic Asia Pacific president Cesar Flores for his “questionable conduct and demeanor.”

On Wednesday, members of the C3E trooped to the Bureau of Immigration in Manila to file a complaint for summary deportation and blacklist order against Flores.

In a statement, C3E co-convenor Nicanor Elman called out Flores for “circulating statements through the media that wrongly accuses the group of being anti-automation, and insinuating that they are merely paid for by other competitors for the automated elections.”

Elman then quoted Flores as saying in one media interview that critics were “apparently working for our competitors,” and that their main goal “is returning to manual elections to serve their vested interests.”

“We have repeatedly stated for the record that C3E is not against the automated election system. Automation is part of the law, and is the logical direction towards progess. What we are saying however is that it should be implemented properly, and with no room for doubt,” said Elman.

For his part, C3E legal counsel Mike Dauz said, “Much like a house guest who was welcomed and treated with hospitality and respect, Flores has repaid the goodwill our country has shown him by wrongly accusing its residents of baseless crimes.”

“It’s about time someone called him out for his shameless actions,” said co-convenor Leon Peralta, adding that Flores “has become an undesirable alien, and has overstayed his welcome in the country.” – Michael Bueza/Rappler.com