Comelec’s P1.2B ‘midnight deal’ with Smartmatic questioned at SC

One of the petitioners, Bishop Broderick Pabillo, says voiding the Comelec resolution could help in the country’s efforts to hold clean elections.


MANILA – The AES Watch, an election watchdog representing more than 40 organizations, asked the Supreme Court to void the Comelec resolution awarding to Smartmatic-Total Information Management a maintenance contract for Precinct Count Optical Scanner (Pcos) machines.

The group’s filing of the petition coincided with the retirement of Comelec Chairman Sixto Brillantes on Feb 2.

Representatives of groups allied with AES watch file petition against Comelec's Resolution 9922 (Feb 2, 2015 Photo by M. Salamat /
Representatives of groups allied with AES watch file petition against Comelec’s Resolution 9922 (Feb 2, 2015 Photo by M. Salamat /

Dubbed by critics as a “midnight deal,” Comelec Resolution 9922 was passed on December 23, 2014 and it awards up to P1.2 billion ($27.2 million) worth of contract to Smartmatic-TIM for diagnostics and other maintenance works on PCOS machines.

The AES Watch questioned the amount of the contract, the lack of proper bidding, the seeming favoritism of the foreign-controlled and much-criticized Smartmatic, and the timing of passing the resolution.

“Why Dec 23?” Bishop Broderick Pabillo, one of the petitioners, asked before they filed the petition. Still, Brillantes was quoted in reports as confirming that he had signed the contract with Smartmatic.

But beyond the issues of wasteful spending of public funds, Pabillo said voiding the Comelec resolution or issuing a temporary restraining order could help in the country’s efforts to hold clean elections.

Questionable– from bidding to handling of election results

Since the first automated elections were held in 2010 using PCOS machines supplied by Smartmatic, various cases of machine malfunction and lack of transparency in election results and its system have been reported. So why is the Comelec entering another contract with the company? Asked the AES Watch. Pabillo said there is no doubt that this is “a midnight deal.”

Leo Querubin, president of Philippine Computer Society and one of the petitioners, disputed the justifications being used by Comelec in hastening the contract signing with Smartmatic.

“There is enough time,” Querubin emphasized, both for proper public bidding for the diagnostics and other maintenance works on the PCOS machines, and for the actual conduct of the diagnostics and maintenance works. The Comelec has said there is no more time and they don’t want to be blamed for failing to prepare for the upcoming 2016 elections.

But Querubin recalled the claims aired before 2013 elections by Comelec Chairman Brillantes and even Smartmatic’s Cesar Flores himself, that inspection and repairs of PCOS machines can be done in just two to three weeks. He also quoted Cesar Flores who he said claimed that the PCOS diagnostics can be done in less than 20 minutes.

With the contract money, Querubin estimated that Comelec and Smartmatic have priced the diagnostic of each PCOS machine at P3,600 ($82), an amount he described as too steep for a less than 30-minute work. Why pay Smartmatic that amount, when it can spend more prudently and work with other groups of efficient people who can do the same job, Querubin asked.

He said even the Comelec IT staff can do the same job at less cost.

Grave abuse of discretion

The AES Watch petition named as respondents the Comelec, represented by Acting Chairman Christian Robert Lim, and Smartmatic-TIM, represented by Smartmatic Asia-Pacific President Cesar Flores.

The petitioners argued that the Comelec, in adopting Resolution 9922, committed “grave abuse of discretion amounting to lack or excess of jurisdiction,” and that it set the stage for “thoughtlessly and scandalously” resorting to direct contracting for the P1.2 billion ($27.2 million) diagnostic examination and repair and maintenance of the PCOS machines.

The petitoners argued that the “multi-billion, two-stage undertaking for the diagnostic and repair and maintenance of the over 80,00 PCOS machines will be subjected entirely to direct contracting by COMELEC tilted in favor of Smartmatic-TIM Corporation, notwithstanding the absence or non-compliance with the conditions for such an alternative method of procurement under Section 50 of the GPRA (Government Procurement Reform Act).”

AES Watch alleged that COMELEC had “tailor-fitted” the deal to satisfy Smartmatic which had enjoyed “undue accomodation” from the Comelec in the past.

The petition noted that in the 2010 and 2013 elections, IT experts and various groups have reported failures and malfunction of PCOS machines; disabling of the minimum security features prior to the elections; lack of source code review by interested parties; lack of digital signatures; problems in voting, counting, canvassing, consolidation and transmission; non-crediting, misreading of votes or inaccuracy of results.

The petition also noted party list election problems.

It didn’t help that Brillantes had been hostile and threatening rather than welcoming and cooperative toward COMELEC’s critics, the petitioners said.

If all these problems (in the handling of automated elections) are not resolved and Smartmatic continues to be in charge of election results, Bishop Pabillo warned that the 2016 election results may once again be lacking in credibility and transparency.

Meanwhile, Kabataan Partylist Rep. Terry Ridon lamented that Comelec had not listened to or acted on calls by elections watchdogs for an “independent audit” of the Pcos machines, and instead it had “essentially surrendered its responsibility to inspect the existing PCOS machines” to Smartmatic.

“Pushing through with the controversial Smartmatic contract puts the integrity of the upcoming elections in jeopardy. The deal is not only controversial because there was no public bidding held, but because it again involves Smartmatic-TIM, a company that has been tagged in various reports of election rigging,” Ridon said in another statement.

He added that what is worse, this time around, “is the Comelec again surrendering the reins to Smartmatic, thus allowing it to again tinker with the machines, and possibly cover its tracks.” Ridon called on acting Comelec chair Lim not to allow Smartmatic to participate in the bidding for the 23,000 new PCOS machines to be purchased for the 2016 elections. (

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