JOINT PROTEST LETTER on the COMELEC-SMARTMATIC DEAL

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13 January 2015

Chairman Sixto S. Brillantes, Jr.
Commissioner 
Lucenito N. Tagle
Commissioner 
Elias R. Yusoph
Commissioner 
Christian Robert S. Lim
Commissioner 
Al A. Parreño
Commissioner 
Luie Tito F. Guia
Commissioner Arthur D. Lim

COMMISSION ON ELECTIONS

Intramuros, Manila

Dear Chairman and Commissioners,

WE, Filipino citizen election advocates from the Automated Election System (AES) Watch and Citizens for Clean and Credible Elections (C3E), have joined together to express in the strongest terms our opposition and grave concerns expressed by a growing number of coalitions of election watch groups, NGOs, Church leaders, academics, IT experts, people’s organizations here and abroad, as well as enlightened sectors in the media who are all legitimate election stakeholders- through editorials, opinion columns and various fora – on the Comelec Resolution 9922 of Dec. 23 awarding to the Venezuelan reseller and marketing company, Smartmatic, the very prohibitive PhP 300M contract of diagnostics and minor repairs on the 82,000 PCOS machines WITHOUT BIDDING!

This rush holiday action by the Comelec led by the Chairman, election lawyer Sixto S. Brillantes, Jr. and Commissioners Elias Yusop and Lucenito Tagle who are scheduled to retire by law, on February 2, 2015, 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.

We are appalled by the fact that the Comelec resolution smacks of a “midnight deal” and cutting corners citing unacceptable reasons (“lack of time”) that compromise the provisions of the procurement as well as election laws. It was, to say the least, in disregard of the urgent concerns raised in the recent Joint Congressional Oversight Committee (JCOC) at the Senate hearing of December 4, 2014 on the AES calling for thorough reports from Comelec on the latest discoveries and explanations by no less than the Technical Evaluation Committee of the government Department of Science and Technology (DOST) on the digital distortions of ballot images from the PCOS machines that, according to the TEC official report, “could have affected the results (counting) of the election” and as the TEC official claims, “would be difficult to clean.”

We view with suspicion, the treacherous deal between Smartmatic and the COMELEC forged after that last JCOC hearing where Chairman Brillantes again failed to submit the poll body’s official reply regarding the critical TEC-DOST findings on the digital lines on the PCOS election results, and where the top sales official of Smartmatic, Cesar Flores, had the temerity to excuse himself from appearing at the hearing because they were “busy working on their bid.”  What refurbishment is being talked about when Comelec’s information is all dependent on Smartmatic’s and no certified report and inventory from independent bodies –government or private – had been done and submitted on the state of the PCOS machines and the source codes that run the counting of the votes?

Why the COMELEC rush to close the deal involving taxpayers’ money of P1.2 billion for the supposed repair of damaged PCOS machines to be paid exclusively to Smartmatic against the recommendation of its OWN legal department for it to be subjected, by law to PUBLIC BIDDING?

We raise this important question: What power has Smartmatic – a foreign company – have that it can threaten the Philippines’ own constitutional election body and succeed in compelling it to award the services (amounting to more than PhP1.2Bn) on the basis ONLY of unverified information supplied by this marketing company regarding its fictitious “ownership” and “manufacturing” rights to the PCOS system, when such claims have already been shown to be questionable?

We remain firm that the Comelec should have bidded out the entirety of the refurbishment contract, and that its argument of a lack of time and that Smartmatic has exclusivity over the PCOS is highly arguable and questionable.

In the first place – going by the argument of repair and refurbishments – Smartmatic should have been compelled to do the necessary diagnotics, repair and fixing of its PCOS hardware at the company’s own expense when technical and hardware deficiencies were exposed as early as 2010, worse in 2013; likewise, in early 2014 when the DOST’s TEC acknowledged the digital distortions of ballot images that altered the 2013 vote counting. Why, indeed, the haste in the Comelec resolution especially because – based on the estimates of our own IT experts – such necessary repairs (again going by your argument) can be done in 6 months?

As to Smartmatic’s claim of exclusivity, we could go on all day about the truth whether Smartmatic is actually the manufacturer or a mere reseller. What is clear however is that Dominion Voting System (DVS) holds the patent to the manufacturing of the PCOS, including the software. But since the Comelec now owns the machines, it can exercise its right by its own IT technicians – or bid out such services in a transparent and public bidding.

After two automated elections, the Comelec should now have developed its own technical capability to undertake such repairs and other services, thus, reducing its dependence on foreign outsourcing and cutting costs in the end.

Expressing our gravest concern over this “midnight deal” we ask that the decision to award the negotiated contract with Smartmatic be deferred until after the retirement of the three outgoing officials on February 2 and the appointment of their replacements. The span of time between the retirement and appointment of new Comelec Chairman and Commissioners would not cause grave delays to the election preparation, and also to avoid mistakes, and the bad perception that comes along with this undue haste.

We ask that the retiring commissioners led by the Chairman, out of a sense of propriety and delicadeza, inhibit themselves from any long term decision making especially on critical issues involving the questionable counting accuracy of the Smartmatic provided PCOS technology that remains the ownership of another foreign company, Dominion Voting System.

Let us give the incoming Chairman and Commissioners the prerogative to exercise their decision over this very critical matter, as they also have the right and duty to review this contract for they are the ones who will be there to see it materialize and be accountable. It is their reputations that are at stake for whatever outcome this midnight deal might produce.

We also reiterate our position that Smartmatic Company be banned from participating in current and future elections on the basis of numerous accounts – since 2009 – of ownership misrepresentation, non-compliance with election and procurement laws including the E-Commerce Act pertaining to the minimum requirements of a transparent, accountable, accurate, and reliable election system.

It is our moral, legal and natural obligation to stop this blatant mockery of the rule of law in the country and the continued subservience of the COMELEC to foreign provider Smartmatic and Cesar Flores who is allowed to malign and libel even reputable Filipino experts and legitimate organizations.

Let us allow our own Filipino IT inside Comelec, government agencies and independent experts to participate democratically and help develop appropriate election systems and technology in promoting the right of suffrage and against undue interference of foreign vested interests.

Conveners, Members and Networks of the

Automated Election System Watch (AES Watch) &

Citizens for Clean and Credible Elections (C3E)

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