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IF SMARTMATIC-TIM BREAK UP Comelec can take over poll deal–exec

Posted on: July 3, 2009

Comelec can take over poll deal–exec

By Anna Valmero
First Posted 10:06:00 07/03/2009

Filed Under: Eleksyon 2010, Elections, Computing & Information Technology

MANILA, Philippines — The Commission on Elections (Comelec) has all the “legal backing” to take over the poll automation contract should the winning bidder consortium refuse to sign the contract Friday, an official said.

“The Comelec can take over the automation contract and continue the project only with Smartmatic — I see it is the next best option for automation to push through if the bidder won’t reconcile tomorrow [Friday]. Existing law provisions allow the Comelec to directly engage with the foreign bidder,” said lawyer Ivan John Uy, Comelec Advisory Council (CAC) member and observer during the automation bidding.

On Monday, Total Informaiton Management told Comelec chairman Jose Melo that it was pulling out of the agreement because it could not agree with foreign partner Smartmatic as to who would get the final say in the disbursement of payments for the project

The impasse has put the automation project in peril.

In an interview with, Uy dismissed opposing views that a takeover of the contract was impossible.

“Those who don’t believe that take over of contract is a good option argue that first, the Comelec can’t proceed with the project if one of the joint venture [JV] member withdraws, thus nullifying the 60:40 ratio of ownership between a local and foreign firm JV and second, that the Comelec cannot enter into a contract with Smartmatic alone since it awarded the contract to both TIM and Smartmatic,” Uy said.

“On the other hand, Republic Act 9369 Section 10 authorizes Comelec to acquire its poll technology from a local or foreign sources and it is not bound by the 60:40 ratio,” Uy added.

Quoting Section 53 of the Government Producrement Act, Uy said: “A negotiated procurement through take-over of contract is allowed when a contract was ‘rescinded or terminated…, where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services…’ And thus, Comelec has leeway to take over if any of the bidder or bidder partners cannot deliver, which is the case when TIM withdraws.”

In the event that TIM would withdraw on Friday, Uy said both the CAC and the official observers of the automation bidding would ask the Comelec to exhaust all legal means possible to “proceed with the automation of the 2010 elections with Smartmatic and to hold TIM accountable for its actions.”

If Comelec takes over the contract, Comelec should form a multi-secotral task force to supplement man power requirements for technical and legal assistance to the body, the official observers said in a resolution issued on Thursday.

“Our position is justified that automation can continue and Comelec can take over the contract then deal directly with Smartmatic. There are legal backing to allow them to proceed. It is up to Comelec if they would adopt this recommendation,” Uy said.

Asked to comment the possibility of manual elections in 2010, Uy said: “If we will have manual elections in 2010 and we cannot fix this now, we will never have automated elections. Who will bid after the controversial Mega Pacific case and to be followed by this? They will say the Philippines and Comelec are not mature enough to go into automated elections.”

“Only those with vested interests and who benefit from cheating in manual elections do not want automation,” Uy said.

The Comelec en banc is set to meet with officials of Smartmatic and TIM ahead of the contract signing set Friday noon.


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