Showing posts with label Smartmatic. Show all posts
Showing posts with label Smartmatic. Show all posts
Wednesday, March 7, 2018
COMELEC to probe Sotto fraud expose
Tuesday, March 20, 2012
Lawmaker urges manual polls in May 2013
By: Kim Arveen M. PatriaBusiness World Online
MANILA, Philippines (20 March 2012) - A LAWMAKER has filed a bill which seeks to employ a manual voting system in the May 2013 elections, saying that the use of counting machines in the previous polls was "illegal and irregular."
Comelec finally admitted PCOS defective
SHOOTING STRAIGHT
By Bobit S. Avila
March 19, 2012 | Opinion
Last Friday, I was in
the midst of a very important meeting when a friend interrupted our meeting to
show us a texted report that the Commission on Elections (Comelec) finally
approved the purchase of the Precinct Count Optical Scan (PCOS) machines. My meeting had nothing to do with politics,
yet a report like that was shocking enough for us in Cebu because of the incident
that happened in the town of Compostela, 25 kilometers North of Cebu City where
they didn’t have any town officials for 22 months, thanks to the PCOS machines
that doesn’t know now to count!
Monday, March 19, 2012
Group to file TRO against purchase of PCOS machines
By: REYNALDO SANTOS, JR.
MANILA, Philippines (19 March 2012) - THE DECISION of the Commission on Elections (COMELEC) to purchase the 2010 election machines for the 2013 polls could reach the Supreme Court.
Plan to purchase PCOS machines ‘illegal, risky’
By: Jerome Aning, TJ Burgonio
MANILA, Philippines (19 March 2012) - A poll watchdog said the Commission on Election's (COMELEC) plan to buy Smartmatic Corp.'s used Precinct Count Optical Scan (PCOS) machines was "illegal" and "risky."
Sunday, February 5, 2012
Smartmatic: PCOS machines in perfect condition
By: Sheila
Crisostomo
MANILA, Philippines - Smartmatic International
Corp. gave assurances that the precinct count optical scan (PCOS) machines used
in the country’s first automated polls in 2010 are still in “perfect condition”
and can be used again in next year’s elections.
In an interview last Thursday, Smartmatic president
for Asia Pacific Cesar Flores said the machines are well maintained in the
company’s warehouse in Laguna.
“There won’t be a problem with the machines. They are in perfect condition,” he told The
STAR, days after the Commission on Elections (Comelec) announced that they
would again use the PCOS machines in the 2013 midterm elections.
Princeton scientists hack electronic voting machines
Princeton scientists hack electronic voting machines
The Comelec has two options in acquiring the PCOS
machines – to lease brand new machines through public bidding or to exercise the poll body’s “option to purchase” from
Smartmatic.
Smartmatic was contracted for P7.2 billion by the
Comelec to lease out 82,200 PCOS machines in the 2010 polls. Of these, the agency bought 920 units for
electoral protest cases while the rest were kept in Smartmatic’s Laguna
warehouse.
The poll body however is in a quandary because it
was given a measly P7-billion budget for the 2013 elections. If Comelec decides to lease brand new
machines, this will eat up P6.2 billion of the budget.
If the Comelec buys the 2010 PCOS machines, it will
cost only P1.8 billion but some poll watchdogs and civic groups are wary of its
condition while in storage and its alleged defects in the 2010 polls. They also
questioned the security and accuracy of the machines.
But according to Flores,
there is no reason to question the machines’ security and accuracy.
He added that the Random Manual Audit (RMA)
conducted by the Parish Pastoral Council Voting (PPCRV) and the Comelec and the
results of the recount proceedings for electoral protest cases being conducted
by the poll body are “two validations” on the quality of the machines.
In RMA, the PPCRV and Comelec have randomly
selected polling precincts where they audited the PCOS count against manual
count.
In recount proceedings, on the other hand, the
Comelec checks on the validity of an electoral protest case by comparing the
poll results from 20 percent of the contested polling precincts with results
when the ballots are manually counted.
Flores said the issues against PCOS machines had nothing
to do with the technology.
“Many people are blaming the PCOS system on problems that were more procedural, managerial and
even time-related or planning related. They
have nothing to do with the PCOS machines,” he maintained.
Flores said that if the timeline for the printing of the ballots was followed, this would have not happened.
The printing of the ballots at the government-run National Printing Office (NPO) was delayed
for two months because the Comelec had extended the deadline for the filing of
certificates of candidacy.
“The date to start printing the data was late so we
had less time to print. What happens
when you print faster… you are injecting less ink in the paper. What happens is the ultraviolet ink was not
sufficient to be detected by the PCOS. If we have more time to print, we could have,
maybe, get up with a higher concentration of the chemical reaction or we could
have printed slower,” he said.
Aside from this, Flores said that two days before
the printing started, the NPO also insisted that its own security mark be
included in the ballots, thus, further delaying the printing.
“We are being blamed for something we have zero
fault,” he added.
Flores said since late 2010, the Comelec and
Smartmatic have been working together to modify the PCOS system in preparation
for the August 2011 regional election in the Autonomous Region in Muslim
Mindanao which was shelved and synchronized with next year’s election.
“This was requested to us by the end of 2010, thinking
about the ARMM election. Changes were
already implemented and these things have already been addressed by the Comelec
and Smartmatic together,” he added.
Monday, May 16, 2011
COMELEC junks proposal for manual ARMM polls
By: Mayen Jaymalin
The poll body, according to the source, has already junked a proposal to go to manual in the ARMM polls.
The poll official, who spoke on condition of anonymity, said the Comelec rejected the appeal of newly appointed Commissioner Augusto Lagman for manual elections.
“He (Lagman) really raised the issue of having manual elections but the commission en banc has decided to honor the earlier decision,” the source said.
“It is already official therefore that the ARMM elections will be automated, if ever (the polls will) push through,” the source added.
The source said the deliberation was “healthy” and “cordial” although it began with Lagman strongly pushing for the manual system.
In the end, the source said, Lagman conceded defeat to his six fellow commissioners.
“The (commission) en banc ultimately decided to go automated in these ARMM elections pursuant to the election automation law,” the source said.
Lagman was the foremost critic of the precinct count optical scan (PCOS) machines used in the 2010 national and local elections, citing the technology’s insufficient transparency as required under Republic Act 9369 or the Poll Automation Law.
Upon his appointment, Lagman said he would exert all efforts to convince his fellow commissioners to revert to the manual system since the ARMM elections only involve a small number of candidates and winners.
The Comelec is set to use some 5,000 PCOS machines in the regional polls. It already has 900 units and is looking at buying 4,000 more.
Comelec is now negotiating with service provider Smartmatic International Corp. for an “option to purchase” the PCOS machines used in the May 10, 2010 elections.
Security measures
Meanwhile, the Philippine National Police (PNP) is preparing security measures for the special congressional election in the first district of Ilocos Sur and for the ARMM polls as well.
PNP chief Director General Raul Bacalzo has met with the heads of the national support units and the regional police directors to assess the prevailing situation in the country, especially in Ilocos Sur and the ARMM.
“We are preparing for the elections in Ilocos Sur and ARMM, although nothing is final in the ARMM elections. We need to prepare for that,” said Bacalzo after presiding over the PNP’s second quarter conference last week.
The special election in the first district of Ilocos Sur was called to find a replacement for former congressman Ronald Singson who was convicted of drug trafficking by a court in Hong Kong last February.
Bacalzo said they are also readying security plans for the ARMM polls, which are initially set on Aug. 8.
The Senate has yet to pass a Palace-backed measure postponing the ARMM elections and synchronizing the exercise with the May 2013 national elections
.
The House of Representatives earlier had passed its own postponement bill. Two petitions questioning the move are pending before the Supreme Court.
Former senator Aquilino Pimentel yesterday said the move to postpone the ARMM polls is already “dead” due to lack of time.
“Malacañang’s position is not tenable. They are pushing hard for poll postponement and the appointment of OICs (officers-in-charge), but they have to follow legal processes,” Pimentel said.
“They need to first amend the ARMM Organic Law and subject it to a plebiscite.
That is the process and the ARMM Organic Law was adopted only after it was subjected to a plebiscite. That would be difficult for them since they cannot hold a plebiscite before the elections. There’s no time,” he added. – With Cecille Suerte Felipe, Edith Regalado
Thursday, September 10, 2009
Roque et al vs COMELEC et al [3]
SUBSTANTIVE ISSUES
We now turn to the central issues tendered in the petition which, in terms of subject matter, revolved around two concerns, viz: (1) the Joint Venture Agreement (JVA) of Smartmatic and TIM; and (2) the PCOS machines to be used. Petitioners veritably introduced another issue during the oral arguments, as amplified in their memorandum, i.e. the constitutionality and statutory flaw of the automation contract itself. The petition-in-intervention confined itself to certain features of the PCOS machines.
The Joint Venture Agreement: Its Existence and Submission
The issue respecting the existence and submission of the TIM-Smartmatic JVA does not require an extended disquisition, as repairing to the records would readily provide a satisfactory answer. We note in fact that the petitioners do not appear to be earnestly pressing the said issue anymore, as demonstrated by their counsel’s practically cavalier discussion thereof during the oral argument. When reminded, for instance, of private respondents’ insistence on having in fact submitted their JVA dated April 23, 2009, petitioners’ counsel responded as follows: “We knew your honor that there was, in fact, a joint venture agreement filed. However, because of the belated discovery that [there] were irreconcilable differences, we then made a view that this joint venture agreement was a sham, at best pro forma because it did not contain all the required stipulations in order to evidence unity of interest x x x.”[51]
Indeed, the records belie petitioners’ initial posture that TIM and Smartmatic, as joint venture partners, did not include in their submitted eligibility envelope a copy of their JVA. The SBAC’s Post Qualification Evaluation Report (Eligibility) on TIM-Smartmatic, on page 10, shows the following entry: “Valid Joint Venture Agreement, stating among things, that the members are jointly and severally liable for the whole obligation, in case of joint venture – Documents verified compliance.”[52]
Contrary to what the petitioners posit, the duly notarized JVA, as couched, explained the nature and the limited purpose[53] of the joint venture and expressly defined, among other things, the composition, scope, and the 60-40 capital structure of the aggroupment.[54] The JVA also contains provisions on the management[55] and division of profits.[56] Article 3[57] of the JVA delineates the respective participations and responsibilities of the joint venture partners in the automation project.
Given the foregoing perspective, the Court is at a loss to understand how petitioners can assert that the Smartmatic-TIM consortium has failed to prove its joint venture existence and/or to submit evidence as would enable the Comelec to know such items as who it is dealing with, which between the partners has control over the decision-making process, the amount of investment to be contributed by each partner, the parties’ shares in the profits and like details. Had petitioners only bothered to undertake the usual due diligence that comes with good judgment and examined the eligibility envelope of the Smartmatic-TIM joint venture, they would have discovered that their challenge to and arguments against the joint venture and its JVA have really no factual basis.
It may be, as petitioners observed, that the TIM-Smartmatic joint venture remained an unincorporated aggroupment during the bid-opening and evaluation stages. It ought to be stressed, however, that the fact of non-incorporation was without a vitiating effect on the validity of the tender offers. For the bidding ground rules, as spelled out primarily in the RFP and the clarificatory bid bulletins, does not require, for bidding purposes, that there be an incorporation of the bidding joint ventures or consortiums. In fact, Bid Bulletin Nos. 19 and 20 recognize the existence and the acceptability of proposals of unincorporated joint ventures. In response to a poser, for example, regarding the 60% Filipino ownership requirement in a joint venture arrangement, the SBAC, in its Bid Bulletin No. 22, stated: “In an unincorporated joint venture, determination of the required Filipino participation may be made by examining the terms and conditions of the [JVA] and other supporting financial documents submitted by the joint venture.” (Emphasis ours.) Petitioners, to be sure, have not shown that incorporation is part of the pass/fail criteria used in determining eligibility.
Petitioners have made much of the Court’s ruling in Information Technology Foundation of the Philippines
Petitioners’ invocation of Infotech is utterly misplaced. Albeit Infotech and this case are both about modernizing the election process and bidding joint ventures, the relevant parallelism ends there. Cast as they are against dissimilar factual milieu, one cannot plausibly set Infotech side with and contextually apply to this case the ratio of Infotech. Suffice it to delve on the most glaring of differences. In Infotech, the winning bid pertained to the consortium of Mega Pacific, a purported joint venture. Extant records, however, do not show the formation of such joint venture, let alone its composition. To borrow from the ponencia of then Justice, later Chief Justice, Artemio Panganiban, “there is no sign whatsoever of any [JVA], consortium agreement [or] memorandum agreement x x x executed among the members of the purported consortium.”[59] There was in fine no evidence to show that the alleged joint venture partners agreed to constitute themselves into a single entity solidarily responsible for the entirety of the automation contract. Unlike the purported Mega Pacific consortium in Infotech, the existence in this case of the bidding joint venture of Smartmatic and TIM is properly documented and spread all over the bid documents. And to stress, TIM and Smartmatic, in their JVA, unequivocally agreed between themselves to perform their respective undertakings. And over and beyond their commitments to each other, they undertook to incorporate, if called for by the bidding results, a JVC that shall be solidarily liable with them for any actionable breach of the automation contract.
In Infotech, the Court chastised the Comelec for dealing with an entity, the full identity of which the poll body knew nothing about. Taking a cue from this holding, petitioners tag the TIM-Smartmatic JVA as flawed and as one that would leave the Comelec “hanging” for the non-inclusion, as members of the joint venture, of three IT providers. The three referred to are Jarltech International, Inc. (Jarltech), a subsidiary of Smartmatic that manufactures the Smartmatic voting machines; Dominion Voting Systems (Domino), the inventor of said PCOS machines; and 2GO Transportation System Corporation (2GO), the subcontractor responsible for the distribution of the PCOS machines throughout the country.
Petitioners’ beef against the TIM-Smartmatic JVA is untenable. First off, the Comelec knows the very entities whom they are dealing with, which it can hold solidary liable under the automation contract, should there be contract violation. Secondly, there is no requirement under either RA 8436, as amended, or the RFP, that all the suppliers, manufacturers or distributors involved in the transaction should be part of the joint venture. On the contrary, the Instruction to Bidders––as petitioners themselves admit[60]––allows the bidder to subcontract portions of the goods or services under the automation project.[61]
To digress a bit, petitioners have insisted on the non-existence of a bona fide JVA between TIM and Smartmatic. Failing to gain traction for their indefensible posture, they would thrust on the Court the notion of an invalid joint venture due to the non-inclusion of more companies in the existing TIM-Smartmatic joint venture. The irony is not lost on the Court.
This brings us to the twin technical issues tendered herein bearing on the PCOS machines of Smartmatic.
At its most basic, the petition ascribes grave abuse of discretion to the Comelec for, among other things, awarding the automation project in violation of RA 8436, as amended. Following their line, no pilot test of the PCOS technology Smartmatic-TIM offered has been undertaken; hence, the Comelec cannot conduct a nationwide automation of the 2010 polls using the machines thus offered. Hence, the contract award to Smartmatic-TIM with their untested PCOS machines violated RA 8436, as amended by RA 9369, which mandates that with respect to the May 2010 elections and onwards, the system procured must have been piloted in at least 12 areas referred to in Sec. 6 of RA 8436, as amended. What is more, petitioners assert, private respondents’ PCOS machines do not satisfy the minimum system capabilities set by the same law envisaged to ensure transparent and credible voting, counting and canvassing of votes. And as earlier narrated, petitioners would subsequently add the abdication angle in their bid to nullify the automation contract.
Pilot Testing Not Necessary
Disagreeing, as to be expected, private respondents maintain that there is nothing in the applicable law requiring, as a pre-requisite for the 2010 election automation project award, that the prevailing bidder’s automation system, the PCOS in this case, be subjected to pilot testing. Comelec echoes its co-respondents’ stance on pilot testing, with the added observation that nowhere in the statutory provision relied upon are the words “pilot testing” used.[62] The Senate’s position and its supporting arguments match those of private respondents.
The respondents’ thesis on pilot testing and the logic holding it together are well taken. There can be no argument about the phrase “pilot test” not being found in the law. But does it necessarily follow that a pilot test is absolutely not contemplated in the law? We repair to the statutory provision petitioners cited as requiring a pilot run, referring to Sec. 6 of RA 8436, as amended by RA 9369, reading as follows:
Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the [Comelec], x x x is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local elections, which shall be held immediately after the effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the [Comelec]: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented. (Emphasis and underscoring added.)
RA 9369, which envisages an AES, be it paper-based or direct-recording electronic, took effect in the second week of February 2007 or thereabout.[63] The “regular national and local elections” referred to after the “effectivity of this Act” can be no other than the May 2007 regular elections, during which time the AES shall, as the law is worded, be used in at least two highly urbanized cities and provinces in Luzon, Visayas and Mindanao. The Court takes judicial notice that the May 2007 elections did not deploy AES, evidently due to the mix of time and funding constraints.
To the petitioners, the underscored portion of the aforequoted Sec. 6 of RA 8436 is the pilot-testing provision that Comelec failed to observe.
We are not persuaded.
Antecedents | Procedural Grounds | Substantive Issues | Ruling
Tuesday, September 8, 2009
Supreme Court Okays Poll Automation in 2010 Elections
The Supreme Court of the Philippines will promulgate Thursday, September 10, 2009, its decision regarding the petition by a UP law professor seeking to invalidate the contract signed between COMELEC and Smartmatic/TIM to automate the 2010 national and local elections. This was the report gathered by abs-cbnNEWS/Newsbreak. The news item reads in full, thus:
MANILA -- It's full steam ahead to automate next year’s elections.
Voting 11-3-1, the Supreme Court junked the petition filed by University of the Philippines law professor Harry Roque to declare as invalid the P7.2 billion automation contract between the Commission on Elections (Comelec) and winning consortium Smartmatic and Total Information Management (TIM), according to early reports reaching abs-cbnNEWS.com/Newsbreak.
The ruling, penned by Justice Presbitero Velasco, is expected to be promulgated this week. Justices Antonio Carpio, Conchita Carpio-Morales, and Arturo Brion dissented. Justice Leonardo Quisumbing, who is on leave, took no part.
The ruling paves the way for Comelec to go full throttle in the preparations and implementation of poll automation.
Earlier, fears were raised that the SC case, if further prolonged, could push back the poll body’s timetable, which could have dire consequences on the country’s first-ever nationwide computerized elections.
Roque had sought the junking of the automation contract, arguing that the automation law provides that the system should be first pilot-tested in selected areas.
Representing the Concerned Citizens Movement, Roque said the Comelec did not the follow this provision in the law.
Republic Act (RA) 9369, or the amended Automation Law, required that pilot-testing be held in highly-urbanized areas and two provinces each in Luzon, Visayas and Mindanao in the national and local elections that would be held shortly after the measure’s adoption.
The law was passed January 23, 2007.
The Comelec and the Office of the Solicitor-General argued that the law was referring to the May 2007 mid-term senatorial race. But since automation was not implemented at that time, this provision of the law has been deemed waived.
The Roque petition is just one of a series of dramatic incidents that have plagued poll automation.
The winning consortium almost broke up after bagging the contract due to “irreconcilable differences.”
Legal threats issued by Comelec prompted TIM, the Filipino partner in the consortium, to go back to the negotiating table.
The foreign partner itself, Smartmatic, is bugged by negative publicities and controversies.
Monday, August 10, 2009
Roque et al vs COMELEC et al [4]
RULING
From the practical viewpoint, the pilot testing of the technology in question in an actual, scheduled electoral exercise under harsh conditions would have been the ideal norm in computerized system implementation. The underscored proviso of Sec. 6 of RA 8436 is not, however, an authority for the proposition that the pilot testing of the PCOS in the 2007 national elections in the areas thus specified is an absolute must for the machines’ use in the 2010 national/local elections. The Court can concede that said proviso, with respect to the May 2007 elections, commands the Comelec to automate in at least 12 defined areas of the country. But the bottom line is that the required 2007 automation, be it viewed in the concept of a pilot test or not, is not a mandatory requirement for the choice of system in, or a prerequisite for, the full automation of the May 2010 elections.
As may be noted, Sec. 6 of RA 8436 may be broken into three essential parts, the first partaking of the nature of a general policy declaration: that Comelec is authorized to automate the entire elections. The second part states that for the regular national and local elections that shall be held in May 2007, Comelec shall use the AES, with an option, however, to undertake automation, regardless of the technology to be selected, in a limited area or, to be more precise, in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the Comelec. On the other hand, the last part, phrased sans reference to the May 2007 elections, commands thus: “[I]n succeeding regular national or local elections, the [automated election system] shall be implemented.” Taken in its proper context, the last part is indicative of the legislative intent for the May 2010 electoral exercise to be fully automated, regardless of whether or not pilot testing was run in the 2007 polls.
To argue that pilot testing is a condition precedent to a full automation in 2010 would doubtless undermine the purpose of RA 9369. For, as aptly observed during the oral arguments, if there was no political exercise in May 2007, the country would theoretically be barred forever from having full automation.
Sec. 6 of the amended RA 8436, as couched, therefore, unmistakably conveys the idea of unconditional full automation in the 2010 elections. A construal making pilot testing of the AES a prerequisite or condition sine qua non to putting the system in operation in the 2010 elections is tantamount to reading into said section something beyond the clear intention of Congress, as expressed in the provision itself. We reproduce with approval the following excerpts from the comment of the Senate itself:
The plain wordings of RA 9369 (that amended RA 8436) commands that the 2010 elections shall be fully automated, and such full automation is not conditioned on “pilot testing” in the May 2007 elections. Congress merely gave COMELEC the flexibility to partially use the AES in some parts of the country for the May 2007 elections.[64]
Lest it be overlooked, an AES is not synonymous to and ought not to be confused with the PCOS. Sec. 2(a) of RA 8436, as amended, defines an AES as “a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing and transmission of election results, and other electoral processes.” On the other hand, PCOS refers to a technology wherein an optical ballot scanner, into which optical scan paper ballots marked by hand by the voter are inserted to be counted.[65] What may reasonably be deduced from these definitions is that PCOS is merely one of several automated voting, counting or canvassing technologies coming within the term AES, implying in turn that the automated election system or technology that the Comelec shall adopt in future elections need not, as a matter of mandatory arrangement, be piloted in the adverted two highly urbanized cities and provinces.
In perspective, what may be taken as mandatory prerequisite for the full automation of the 2010 regular national/ local elections is that the system to be procured for that exercise be a technology tested either here or abroad. The ensuing Section 8 of RA 8436, as amended, says so.
SEC 12. Procurement of Equipment and Materials.– To achieve the purpose of this Act, the Commission is authorized to procure, xxx, by purchase, lease, rent or other forms of acquisition, supplies, equipment, materials, software, facilities, and other services, from local or foreign sources xxx. With respect to the May 10, 2010 elections and succeeding electoral exercises, the system procured must have demonstrated capability and been successfully used in prior electoral exercise here or abroad. Participation in the 2007 pilot exercise shall not be conclusive of the system’s fitness. (Emphasis supplied).
While the underscored portion makes reference to a “2007 pilot exercise,” what it really exacts is that, for the automation of the May 2010 and subsequent elections, the PCOS or any AES to be procured must have demonstrated its capability and success in either a local or a foreign electoral exercise. And as expressly declared by the provision, participation in the 2007 electoral exercise is not a guarantee nor is it conclusive of the system’s fitness. In this regard, the Court is inclined to agree with private respondents’ interpretation of the underscored portion in question: “The provision clearly conveys that the [AES] to be used in the 2010 elections need not have been used in the 2007 elections, and that the demonstration of its capability need not be in a previous Philippine election. Demonstration of the success and capability of the PCOS may be in an electoral exercise in a foreign jurisdiction.”[66] As determined by the Comelec, the PCOS system had been successfully deployed in previous electoral exercises in foreign countries, such as Ontario , Canada ; and New York , USA Philippines
At any event, any lingering doubt on the issue of whether or not full automation of the 2010 regular elections can validly proceed without a pilot run of the AES should be put to rest with the enactment in March 2009 of RA 9525,[68] in which Congress appropriated PhP 11.301 billion to automate the 2010 elections, subject to compliance with the transparency and accuracy requirements in selecting the relevant technology of the machines, thus:
Sec. 2. Use of Funds.– x x x Provided, however, That disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of [RA] No. 9369 and other election laws incorporated in said Act as to ensure the conduct of a free, orderly, clean, honest and credible election and shall adopt such measures that will guaranty transparency and accuracy in the selection of the relevant technology of the machines to be used on May 10, 2010 automated national and local elections. (Emphasis added.)
It may safely be assumed that Congress approved the bill that eventually became RA 9525, fully aware that the system using the PCOS machines were not piloted in the 2007 electoral exercise. The enactment of RA 9525 is to us a compelling indication that it was never Congress’ intent to make the pilot testing of a particular automated election system in the 2007 elections a condition precedent to its use or award of the 2010 Automation Project. The comment-in-intervention of the Senate says as much.
Further, the highly charged issue of whether or not the 2008 ARMM elections––covering, as NCC observed, three conflict-ridden island provinces––may be treated as substantial compliance with the “pilot test” requirement must be answered in the affirmative. No less than Senator Richard J. Gordon himself, the author of the law, said that “the system has been tried and tested in the ARMM elections last year, so we have to proceed with the total implementation of the law.”[69]
We note, though, the conflicting views of the NCC[70] and ITFP[71] on the matter. Suffice it to state at this juncture that the system used in the 2008 ARMM election exercise bears, as petitioners to an extent grudgingly admit, [72] a similarity with the PCOS. The following, lifted from the Comelec’s comment, is to us a fair description of how the two systems (PCOS and CCOS) work and where the difference lies:
xxx the elections in the [ARMM] utilized the Counting Center Optical Scan (CCOS), a system which uses the Optical Mark Reader (OMR), the same technology as the PCOS.
Under the CCOS, the voters cast their votes by shading or marking the circles in the paper ballots which corresponded to the names of their chosen candidates [like in PCOS]. Thereafter, the ballot boxes were brought to the counting centers where they were scanned, counted and canvassed.
xxx Under the PCOS, the counting, consolidation and canvassing of the votes are done at the precinct level. The election results at the precincts are then electronically transmitted to the next level, and so on. xxx PCOS dispenses with the physical transportation of ballot boxes from the precincts to the counting centers.[73]
Moreover, it has been proposed that a partial automation be implemented for the May 2010 elections in accordance with Section 5 of RA 8436, as amended by RA 9369 instead of full automation. The Court cannot agree as such proposition has no basis in law. Section 5, as worded, does not allow for partial automation. In fact, Section 5 clearly states that “the AES shall be implemented nationwide.”[74] It behooves this Court to follow the letter and intent of the law for full automation in the May 2010 elections.
RULING:
Pilot Testing Not A Pre-condition to Full Automation
RULING:
Pilot Testing Not A Pre-condition to Full Automation
PCOS Meets Minimum Capabilities Standards
RULING
PCOS Meets Minimum Capabilities Standards
As another ground for the nullification of the automation contract, petitioners posit the view that the PCOS machines do not satisfy the minimum system capabilities prescribed by RA 8436, as amended. To a specific point, they suggest that the PCOS system offered and accepted lacks the features that would assure accuracy in the recording and reading of votes, as well as in the tabulation, consolidation/canvassing, electronic transmission, storage results and accurate ballot counting.[75] In this particular regard, petitioners allege that, based on Smartmatic’s website, the PCOS has a margin of error of from 2% to 10%, way beyond that of the required 99.99% accuracy in the counting of votes.[76]
The minimum system capabilities provision cited is Sec. 7 of RA 8436, as amended, and the missing features referred to by petitioners are pars. (b) and (j). In full, Sec. 7 of RA 8436, as amended, reads:
SEC. 6. Minimum System Capabilities. - The automated election system must at least have the following functional capabilities:
(a) Adequate security against unauthorized access;
(b) Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results;
(c) Error recovery in case of non-catastrophic failure of device;
(d) System integrity which ensures physical stability and functioning of the vote recording and counting process;
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for verifying the correctness of reported election results;
(g) An election management system for preparing ballots and programs for use in the casting and counting of votes and to consolidate, report and display election result in the shortest time possible;
(h) Accessibility to illiterates and disabled voters;
(i) Vote tabulating program for election, referendum or plebiscite;
(j) Accurate ballot counters;
(k) Data retention provision;
(l) Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process;
(m) Utilize or generate official ballots as herein defined;
(a) Provide the voter a system of verification to find out whether or not the machine has registered his choice; and
(o) Configure access control for sensitive system data and function.
In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met. The evaluation system shall be developed with the assistance of an advisory council.
From the records before us, the Court is fairly satisfied that the Comelec has adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria, as will be enumerated shortly, to ensure compliance with the above minimum systems capabilities.
The SBAC Memorandum[77] of June 03, 2009, as approved by Comelec Res. 8608,[78] categorically stated that the SBAC-TWG submitted its report that TIM/Smartmatic’s proposed systems and machines PASSED all the end-to-end demo tests using the aforementioned 26-item criteria, inclusive of the accuracy rating test of at least 99.955%. As appearing in the SBAC-TWG report, the corresponding answers/remarks to each of the 26 individual items are as herein indicated:[79]
ITEM | REQUIREMENT | REMARK/DESCRIPTION |
1 | Does the system allow manual feeding of a ballot into the PCOS machine? | Yes. The proposed PCOS machine accepted the test ballots which were manually fed one at a time. |
2 | Does the system scan a ballot sheet at the speed of at least 2.75 inches per second? | Yes. A 30-inch ballot was used in this test. Scanning the 30-inch ballot took 2.7 seconds, which translated to 11.11inches per second. |
3 | Is the system able to capture and store in an encrypted format the digital images of the ballot for at least 2,000 ballot sides (1,000 ballots, with back to back printing)? | Yes the system captured the images of the 1,000 ballots in encrypted format. Each of the 1,000 images files contained the images of the front and back sides of the ballot, totaling to 2,000 ballot side. To verify the captured ballot images, decrypted copies of the encrypted files were also provided. The same were found to be digitized representations of the ballots cast. |
4 | Is the system a fully integrated single device as described in item no. 4 of Component 1-B? | Yes. The proposed PCOS is a fully integrated single device, with built-in printer and built-in data communications ports (Ethernet and USB). |
5 | Does the system have a scanning resolution of at least 200 dpi? | Yes. A portion of a filled up marked oval was blown up using image editor software to reveal the number of dots per inch. The sample image showed 200 dpi. File properties of the decrypted image file also revealed 200 dpi. |
6 | Does the system scan in grayscale? | Yes. 30 shades of gray were scanned in the test PCOS machine, 20 of which were required, exceeding the required 4-bit/16 levels of gray as specified in the Bid Bulletin No. 19. |
7 | Does the system require authorization and authentication of all operators, such as, but not limited to, usernames and passwords, with multiple user access levels? | Yes. The system required the use of a security key with different sets of passwords/PINs for Administrator and Operator users. |
8 | Does the system have an electronic display? | Yes. The PCOS machine makes use of an LCD display to show information: · if a ballot may be inserted into the machine; · if a ballot is being processed; if a ballot is being rejected; · on other instructions and information to the voter/operator. |
9 | Does the system employ error handling procedures, including, but not limited to, the use of error prompts and other related instructions? | Yes. The PCOS showed error messages on its screen whenever a ballot is rejected by the machine and gives instructions to the voter on what to do next, or when there was a ballot jam error. |
10 | Does the system count the voter’s vote as marked on the ballot with an accuracy rating of at least 99.995%? | Yes. The two rounds of tests were conducted for this test using only valid marks/shades on the ballots. 20,000 marks were required to complete this test, with only one (1) allowable reading error. 625 ballots with 32 marks each were used for this test. During the comparison of the PCOS-generated results with the manually prepared/predetermined results, it was found out that there were seven (7) marks which were inadvertently missed out during ballot preparation by the TWG. Although the PCOS-generated results turned out to be 100% accurate, the 20,000-mark was not met thereby requiring the test to be repeated. To prepare for other possible missed out marks,650 ballots with (20,800 marks) were used for the next round of test, which also yielded 100% accuracy. |
11 | Does the system detect and reject fake or spurious, and previously scanned ballots? | Yes. This test made use of one (1) photocopied ballot and one (1) “re-created” ballot. Both were rejected by the PCOS. |
12 | Does the system scan both sides of a ballot and in any orientation in one pass? | Yes. Four (4) ballots with valid marks were fed into the PCOS machine in the four (4) portrait orientations specified in Bid Bulletin No. 4 (either back or front, upside down or right side up), and all were accurately captured. |
13 | Does the system have necessary safeguards to determine the authenticity of a ballot, such as, but not limited to, the use of bar codes, holograms, color shifting ink, micro printing, to be provided on the ballot, which can be recognized by the system? | Yes. The system was able to recognize if the security features on the ballot are “missing”. Aside from the test on the fake or spurious ballots (Item No. 11), three (3) test ballots with tampered bar codes and timing marks were used and were all rejected by the PCOS machine. The photocopied ballot in the test for Item No. 11 was not able to replicate the UV ink pattern on top portion of the ballot causing the rejection of the ballot. |
14 | Are the names of the candidates pre-printed on the ballot? | Yes. The Two sample test ballots of different lengths were provided: one (1) was 14 inches long while the other was 30 inches long. Both were 8.5 inches wide. The first showed 108 pre-printed candidate names for the fourteen (14) contests/positions, including two (2) survey questions on gender and age group, and a plebiscite question. The other showed 609 pre-printed candidate names, also for fourteen (14) positions including three (3) survey questions. |
15 | Does each side of the ballot sheet accommodate at least 300 names of candidates with a minimum font size of 10, in addition to other mandatory information required by law? | Yes. The 30-inch ballot, which was used to test Item No. 2, contained 309 names for the national positions and 300 names for local positions. The total pre-printed names on the ballot totaled 609. This type of test ballot was also used for test voting by the public, including members of the media. Arial Narrow, font size 10, was used in the printing of the candidate names. |
16 | Does the system recognize full shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? | Yes. The ballots used for the accuracy test (Item No. 10), which made use of full shade marks, were also used in this test and were accurately recognized by the PCOS machine. |
17 | Does the system recognize partial shade marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? | Yes. Four (4) test ballots were used with one (1) mark each per ballot showing the following pencil marks: · top half shade; · bottom half shade; · left half shade; and · right half shade These partial shade marks were all recognized by the PCOS machine |
18 | Does the system recognize check (ü)marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? | Yes. One (1) test ballot with one check (ü) mark, using a pencil, was used for this test. The mark was recognized successfully. |
19 | Does the system recognize x marks on the appropriate space on the ballot opposite the name of the candidate to be voted for? | Yes. One (1) test ballot with one x mark, using a pencil, was used for this test. The mark was recognized successfully. |
20 | Does the system recognize both pencil and ink marks on the ballot? | Yes. The 1000 ballots used in the accuracy test (Item No. 10) were marked using the proposed marking pen by the bidder. A separate ballot with one (1) pencil mark was also tested. This mark was also recognized by the PCOS machine. Moreover, the tests for Items No. 17, 18 and 19 were made using pencil marks on the ballots. |
21 | In a simulation of a system shut down, does the system have error recovery features? | Yes. Five (5) ballots were used in this test. The power cord was pulled from the PCOS while the 3rd ballot was in the middle of the scanning procedure, such that it was left “hanging” in the ballot reader. After resumption of regular power supply, the PCOS machine was able to restart successfully with notification to the operator that there were two (2) ballots already cast in the machine. The “hanging” 3rd ballot was returned to the operator and was able to be re-fed into the PCOS machine. The marks on all five (5) were all accurately recognized. |
22 | Does the system have transmission and consolidation/canvassing capabilities? | Yes. The PCOS was able to transmit to the CCS during the end-to-end demonstration using GLOBE prepaid Internet kit. |
23 | Does the system generate a backup copy of the generated reports, in a removable data storage device? | Yes. The PCOS saves a backup copy of the ERs, ballot images, statistical report and audit log into a Compact Flash (CF) Card. |
24 | Does the system have alternative power sources, which will enable it to fully operate for at least 12 hours? | Yes. A 12 bolt 18AH battery lead acid was used in this test. The initial test had to be repeated due to a short circuit, after seven (7) hours from start-up without ballot scanning. This was explained by TIM-Smartmatic to be caused by non-compatible wiring of the battery to the PCOS. A smaller wire than what is required was inadvertently used, likening the situation to incorrect wiring of a car battery. Two (2) COMELEC electricians were called to confirm TIM-Smartmatic’s explanation. The PCOS machine was connected to regular power and started successfully. The following day, the “re-test” was completed in 12 hours and 40 minutes xxx 984 ballots were fed into the machine. The ER, as generated by the PCOS was compared with predetermined result, showed 100% accuracy. |
25 | Is the system capable of generating and printing reports? | Yes. The PCOS prints reports via its built-in printer which includes: 1. Initialization Report; 2. Election Returns (ER); 3. PCOS Statistical Report; 4. Audit Log. |
26 | Did the bidder successfully demonstrate | Yes. An end-to-end demonstration of all proposed systems was presented covering: importing of election data into the EMS; creation of election configuration data for the PCOS and the CCS using EMS; creation of ballot faces using EMS; configuring the PCOS and the CCS using the EMS-generated election configuration file; initialization, operation, generation of reports and backup using the PCOS; electronic transmission of results to the: [1] from the PCOS to city/municipal CCS and the central server. [2] from the city/municipal CCS to the provincial CCS. [3] from the provincial CCS to the national CCS; receipt and canvass of transmitted results: [1] by the city/municipal CCS from the PCOS. [2] by the provincial CCS from the city/municipal CCS. [3] by the national CCS from the provincial CCS; receipt of the transmittal results by the central server from the PCOS. |
Given the foregoing and absent empirical evidence to the contrary, the Court, presuming regularity in the performance of regular duties, takes the demo-testing thus conducted by SBAC-TWG as a reflection of the capability of the PCOS machines, although the tests, as Comelec admits,[80] were done literally in the Palacio del Governador building, where a room therein simulated a town, the adjoining room a city, etc. Perusing the RFP, however, the real worth of the PCOS system and the machines will of course come after they shall have been subjected to the gamut of acceptance tests expressly specified in the RFP, namely, the lab test, field test, mock election test, transmission test and, lastly, the final test and sealing procedure of all PCOS and CCS units using the actual Election Day machine configuration.[81]
Apropos the counting-accuracy feature of the PCOS machines, petitioners no less impliedly admit that the web page they appended to their petition, showing a 2% to 10% failing rate, is no longer current.[82] And if they bothered to examine the current website of Smartmatic specifically dealing with its SAES 1800, the PCOS system it offered, they would have readily seen that the advertised accuracy rating is over “99.99999%.”[83] Moreover, a careful scrutiny of the old webpage of Smarmatic reveals that the 2% to 10% failure rate applied to “optical scanners” and not to SAES. Yet the same page discloses that the SAES has “100%” accuracy. Clearly, the alleged 2% to 10% failing rate is now irrelevant and the Court need not belabor this and the equally irrelevant estoppel principle petitioners impose on us.
Intervenor Cuadra’s concern relates to the auditability of the election results. In this regard, it may suffice to point out that PCOS, being a paper-based technology, affords audit since the voter would be able, if need be, to verify if the machine had scanned, recorded and counted his vote properly. Moreover, it should also be noted that the PCOS machine contains an LCD screen, one that can be programmed or configured to display to the voter his votes as read by the machine. [84]
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