Hocus PCOS: An elections ‘hostaged’ by a single supplier, Smartmatic

By Marjohara Tucay as originally posted at the Philippine Online Chronicles 1 and 2

The 2016 presidential elections is just around the corner, and the Commission on Elections (Comelec) is in the thick of not just the preparations, but controversy once again, with its recent decision to again tap Smartmatic-Total Information Management (TIM) Corporation for diagnostics and refurbishment of existing 82,000 precinct count optical scan (PCOS) even without the benefit of a public bidding.

Voting 5-2, the Comelec en banc promulgated Resolution No. 9922 on December 23, 2014 which endorsed Smartmatic-TIM’s “extended warranty proposal.” In the said proposal, the company will be given a contract amounting to P300 million to do diagnostic work for the PCOS machines owned by Comelec. The move essentially gives Smartmatic a new contract with the poll body without the benefit of a public bidding, despite the recommendation of Comelec’s very own Law Department.

This move again raised the eyebrows not just of election watchdogs, but even of legislators and church leaders, and raised baffling questions that Comelec cannot – or does not want to – answer.


Comelec’s confounding decision

With Smartmatic offering an “extended warranty proposal” for the repair and maintenance of the 82,000 PCOS machines that are in Comelec’s possession, the poll body was faced with the choice of either accepting the proposal or go through public bidding for the same.

In November last year, the Comelec Law Department released a legal opinion which stated that a public bidding is needed in this instance, since the refurbishment of PCOS machines “still falls within the purview and ambit” of the Government Procurement Reform Act.

However, in Comelec En Banc Resolution No. 9922, the poll body opted for direct contracting with Smartmatic – directly contradicting its Law Department – explaining that it was both “legal and practical” for the commission to do so. Comelec explained that it was pressed for time in preparing for the 2016 elections and that a public bidding might get them off schedule.

The Comelec en banc also explained that letting a third party other than Smartmatic do the refurbishment and repair “will be too great a risk considering the highly technical nature of the refurbishment and/or the repair to be conducted on the machines.”

It is worth noting, however, that two commissioners – Luie Tito Guia and Arthur Lim – disagreed with the majority, explaining in separate opinions that an open competitive bidding remains to be “the best option.”

Where’s transparency?

Comelec’s decision ignited a barrage of criticism and was widely viewed as a move that jeopardized the integrity of the upcoming elections.

In a statement, election watchdog Automated Election System Watch (AES Watch) explained that the “rushed deal” – which was signed during the Christmas holidays – is “highly suspect and utterly unconscionable in the face of the many unresolved issues involving the defective PCOS machines provided in the last two elections – 2010 and 2013 – by the favored foreign vendor, Smartmatic.”


Opposition legislators also weighed in on the issue.

“Entering a negotiated contract for the refurbishment of the PCOS machines not only violates the Government Procurement Act but also exposes our electoral system to high risks of fraud, especially as Smartmatic – which has been involved in the still-unresolved issues of election rigging in the 2013 elections – will again get its hands on the PCOS machines,” the seven-member Makabayan bloc in the House of Representatives said in a joint statement.

“The Government Procurement Act has been enacted to make government procurement transparent. By choosing Smartmatic-TIM for the refurbishment contract without the benefit of a public bidding, Comelec has closed that small window of transparency afforded by the Procurement Act,” said Senior Deputy Minority Floor Leader Neri Colmenares.

The Catholic Bishops’ Conference of the Philippines (CBCP) also issued a strongly-worded statement expressing doubts on the automated elections following Comelec’s decision.

“Speaking on their own authority as shepherds of the people entrusted to their pastoral care, some of my brother bishops have expressed their serious concern over deals that COMELEC appears to be poised to enter into in respect to the automation and digitization of the forthcoming elections,” said Archbishop Socrates Villegas, CBCP president, in a statement.

“We urge the COMELEC to be circumspect in respect to deals and contracts for the handling of automated elections, to avoid a defensive posture and most certainly to be free of bias towards any particular service provider,” Socrates added.

An even more confounding hearing

On January 27, the House Committee on Suffrage and Electoral Reform summoned outgoing Comelec Chair Sixto Brillantes Jr. and several other Comelec officials, along with officials of Smartmatic and other companies that seek to participate in the bidding for other election paraphernalia.

According to Suffrage Committee Chair Fredenil Castro, the hearing sought to “clear the noise and suspicion” surrounding the preparations for the 2016 elections. On the contrary, the hearing raised further questions than answers, with Brillantes and the rest of Comelec evading the questions that matter the most.

During the congressional hearing, Evita Jimenez of the Center for People Empowerment in Governance (CenPEG) and AES Watch asked Brillantes why COMELEC chose to go against the advice of its own Law Department and went ahead and decide to tap SMARTMATIC-TIM’s diagnostic services to check the state of the 82,000 precinct count optical scanner (PCOS) machines even without the benefit of a public bidding.

Jimenez also questioned the lack of an “independent and comprehensive audit” on the current status of the PCOS machines. She emphasized the lack of a system of “check and balance,” particularly with regard to the upkeep of the machines.

“Why didn’t Comelec follow its own Law Department? Why not subject the contract to a public bidding?” Jimenez asked Brillantes.

Brillantes, however, repeatedly told the House panel that the diagnostics and refurbishment contracts are still under negotiation. The poll chief explained that there are two stages involved in the refurbishment of the old 82,000 PCOS machines – first the P300 million contract for “diagnostics,” and second, the P900 million contract for actual repair and refurbishment.

“The prices are not yet final, it could even get lower,” Brillantes added.

The hearing ended with Brillantes failing, yet again, to provide answers on questions posed by poll watchdogs on Smartmatic’s capability and integrity to tinker with the PCOS machines. With the poll chief trying hard to evade the issues, Jimenez retorted, “Well, bidding or no bidding, it will always be Smartmatic. We wonder why.”

COMELEC+BrillantesContinued from Part 1 “Comelec’s confounding decisions on the AES”

by Marjohara Tucay

In the current scheme of things, it appears that the Philippine election system has been “taken hostage” by a single supplier, Smartmatic.

“What document did Comelec use to consider that Smartmatic is the only one qualified to do diagnostic work? There has been no independent agency or group that verified that the machines are working well. How can we award a contract for diagnostics to the same company that supplied the machines?” asked AES Watch convenor Evita Jimenez.

She explained the danger of allowing the same company mired in allegations of election rigging to again tinker with the PCOS machines. “In the first place, we don’t have an independent audit of the PCOS machines. We don’t know how many are working, how many are not working? In other words, walang check and balance.

“Why is Comelec rushing to finish the negotiated contract? Why is there no independent review of the election system?” she asked.

The questions posed by Jimenez, along with several other election watchdogs, remains unanswered until now, adding to the fear that Comelec is in fact setting the stage for another rigged elections.


Pressed for time?

One of the primary reasons why Comelec seeks to do away with public bidding for the PCOS refurbishment contract is that it is pressed for time.

“Time is of the essence in the preparation for the May 9, 2016 National and Local Elections such that the Commission and the Bids and Awards Committee (BAC) are constrained by the tight time schedule if public bidding are to be conducted in the refurbishment and/or repair of the machines considering all the procurement activities lined up,” the Comelec en banc explained in Resolution 9922.

However, AES Watch argues that it is Comelec’s own fault. The lack of project management on part of Comelec led to the situation wherein it was compelled to take Smartmatic’s extended warranty proposal, AES Watch Spokesperson Nelson Celis explained.

“The election body had all the time to conduct a public bidding for the repair of the PCOS machines as early as 2013 when the DOST’s Technical Evaluation Committee (TEC) disclosed defects found in some voting units sampled for diagnostic tests by the group. The TEC said the system flaws particularly digital distortions appearing in ballot images “could have altered election results” in 2013,” Celis said.

Celis, who was part of the drafting of the election modernization law, explained that while the DOST pointed out earlier on the technical defects of the PCOS machines, Comelec refused to act, not until it was directed by the Joint Congressional Oversight Committee (JCOC) on Automated Election System (AES) to determine the cause of the problems.

Lack of independent audit

comelecIt is of particular concern for the public that Smartmatic will again gain access to the PCOS machines, especially since several independent protests have already been filed, alleging that the machines were manipulated to alter the results of the 2010 and 2013 national elections.

Said election protests cited several evidences, including vote surges, mismatched election returns, and the absence of digital signatures. DOST’s study in 2013 also pointed to “dirty digital lines” in the scanned images of the PCOS machines which “could have altered the votes.”

Also, there remains the issue of the recalling of CF cards of all PCOS machines a week before the 2010 presidential elections, which many point out as an obvious tactic to alter the contents of the CF cards and, in turn, rig the election results.

Despite countless election protests, Comelec brushed off the allegations and did not even pursue an independent probe, calling AES Watch and other election watchdogs “noisemakers” and “attention-grabbers.”

Instead of joining the name-calling, AES Watch wrote the JCOC on the automated election system, the Senate Committee on Electoral Reform and People’s Participation (CERPP), and the House Committee on Suffrage and Electoral Reform (CSER) recently, asking that a public demonstration be done by its IT members composed of programmers and IT security experts to prove that the PCOS machines can indeed be tampered with and election results rigged electronically.

“It is crucial to have this demo immediately before the retirement of the chairman and commissioners due by law on February 2 and before any contract is signed with the favored negotiated vendor without bidding,” AES Watch said in their letter.

As of press time, the JCOC, CERPP, and the CSER have yet to reply to AES Watch’s challenge.


A larger force pulling the strings?

With Comelec seemingly adamant on pushing for Smartmatic, there are those who wonder if a “larger force” is pulling the strings in preparation for the upcoming elections.

With Comelec yet to release or even commission an independent audit of the PCOS machines that are under its possession, with controversies hounding the past elections remaining unanswered, the integrity of Smartmatic as a supplier is directly being questioned.

Some groups have already turned to the Supreme Court to seek help against Smarmatic.

In a 48-page petition filed on January 28, groups Citizens for Clean and Credible Elections (C3E), National Labor Union (NLU), League of Elder and Aging Persons (LEAP), Philippine Association of Free Labor Unions (PAFLU), Anti-Trapo Movement of the Philippines, Alliance of Government and Private Retired Employees (AGPREE), ACCO Homes Neighborhood Association, and KAAKBAY party-list called on the high court to stop Comelec from awarding election-related contracts to Smartmatic-TIM.

The petitioners argue that allowing Smartmatic-TIM to join the bidding for contracts is a “grave abuse of discretion,” as the said company has already incurred several violations to its earlier contract.

The continuing saga for the upcoming elections leaves us, the voting public, on the edge of our seats. In the coming weeks, will Comelec give in to AES Watch’s hacking challenge? Will the SC stop Smartmatic from participating the election process and end what critics call the “election system hostage taking”? Or will Smartmatic succeed again, despite all odds?

The sanctity of the ballot is clearly in danger. Only the public’s collective vigilance will help us salvage what little integrity there is left in the automated election system.