G.R. No. 188456 , February 10, 2010
H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R. BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T. ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO, FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, and ALVIN A. PETERS, Petitioners, vs. COMMISSION ON ELECTIONS, Represented by HON. CHAIRMAN JOSE MELO, COMELEC SPECIAL BIDS and AWARDS COMMITTEE, represented by its CHAIRMAN HON. FERDINAND RAFANAN, DEPARTMENT OF BUDGET and MANAGEMENT, represented by HON. ROLANDO ANDAYA, TOTAL INFORMATION MANAGEMENT CORPORATION and SMARTMATIC INTERNATIONAL CORPORATION, Respondents. PETE QUIRINO-QUADRA, Petitioner-in-Intervention. SENATE OF THE PHILIPPINES, represented by its President, JUAN PONCE ENRILE, Movant-Intervenor.

FACTS

Petitioners filed a motion for reconsideration of the Court’s September 10, 2009 Decision which denied their petition for certiorari, prohibition, and mandamus to nullify the contract-award of the 2010 Election Automation Project to the joint venture of Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic). The original petition challenged the award on grounds of non-compliance with the pilot-testing requirements of RA 9369, minimum system capabilities of the Precinct Count Optical Scan (PCOS) system, and the validity of the joint venture agreement. The Court’s Decision dismissed the petition, finding that RA 9369 did not require pilot-testing in the 2007 Philippine elections, that Comelec’s technical evaluation of the PCOS system’s compliance with minimum capabilities should be respected absent grave abuse of discretion, that Comelec retained its constitutional supervision and control over the elections, and that continuity and back-up plans were in place.

ISSUE

Whether the Court should reconsider its September 10, 2009 Decision and declare the contract award null and void based on the following grounds raised in the motion for reconsideration: 1) High probability of automated election failure based on Comelec pronouncements; 2) Comelec’s abdication of its constitutional functions to Smartmatic; 3) Lack of a legal framework for appreciating automated ballots if PCOS machines fail; 4) Inability to comply with RA 8436’s source code review requirement; 5) Insufficiency of certifications on successful use of machines abroad to fulfill RA 8436, Sec. 12; 6) Inability to provide 100% telecommunications coverage; and 7) Illegal subcontracting of PCOS machine manufacture to Quisdi.

RULING

The Court DENIED the motion for reconsideration.
1. The first issue was speculative and conjectural, based on selective and misleading citations of Comelec Chairman Melo’s statements. The full context of his statements showed Comelec was preparing manual elections as a last contingency in remote areas, not admitting a high probability of nationwide failure, and that a nationwide failure was “impossible.”
2. The second issue was a rehash previously addressed. The automation contract (Art. 6.7) preserved Comelec’s exclusive supervision and control, with Smartmatic acting only as a technical service provider.
3. The third issue ignored the continuity and back-up plans detailed in the Decision and mandated by RA 9369, Sec. 13. The legal framework for manual counting in case of failure already exists under existing election laws.
4. On the source code review, the Court found petitioners’ argument premature. The review was a condition precedent for the implementation, not the perfection, of the contract. The Comelec had until February 9, 2010, to make the source code available, and the Court presumed it would perform its duty.
5. The certifications submitted by private respondents regarding successful use of the PCOS machines in elections in New York and other jurisdictions sufficiently demonstrated capability and successful use abroad as required by RA 8436, Sec. 12, as amended.
6. The issue on telecommunications coverage was not raised in the original petition and was therefore barred. Even if considered, the argument was speculative, and the contract required the provider to ensure transmission capabilities.
7. The issue on subcontracting to Quisdi was also not raised in the original petition and was barred. The Court noted the allegation was based on a news article, which was hearsay and insufficient to prove a violation of bidding rules. The subcontracting, even if true, appeared permissible under the contract as the manufacture of the machines was incidental to the lease contract.