Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
*
G.R. No. 159139. January 13, 2004.
_______________
* EN BANC.
142
proceedings, (10) when the rule does not provide a plain, speedy and
adequate remedy, and (11) when there are circumstances indicating the
urgency of judicial intervention.”
Same; Same; Words and Phrases; Joint Venture; Definition.—This
Court in Kilosbayan v. Guingona defined joint venture as “an association of
persons or companies jointly undertaking some commercial enterprise;
generally, all contribute assets and share risks. It requires a community of
interest in the performance of the subject matter, a right to direct and govern
the policy in connection therewith, and [a] duty, which may be altered by
agreement to share both in profit and losses.”
Same; Same; Public Bidding; Rationale; The essence of public bidding
is, after all, the opportunity for fair competition, and a fair basis for the
precise comparison of bids.—The essence of public bidding is, after all, an
opportunity’ for fair competition, and a fair basis for the precise comparison
of bids. In common parlance, public bidding aims to “level the playing
field.” That means each bidder must bid under the same conditions; and be
subject to the same guidelines, requirements and limitations, so that the best
offer or lowest bid may be determined, all other things being equal.
143
144
145
146
courts, for reasons of law, comity and convenience, will not entertain the
case unless the available administrative remedies have been resorted to and
the appropriate authorities have been given an opportunity to act and
correct the errors committed in the administrative forum.—The doctrine of
exhaustion of administrative remedies requires that when an administrative
remedy is provided by law, relief must be sought by exhausting this remedy
before the courts will act. No recourse can be had until all such remedies
have been exhausted and special civil actions against administrative officers
should not be entertained if superior administrative officers could grant
relief. In Hon. Carale v. Hon. Abarintos, the Court enunciated the reasons
for the doctrine, thus: Observance of the mandate regarding exhaustion of
administrative remedies is a sound practice and policy. It ensures an orderly
procedure which favors a preliminary sifting process, particularly with
respect to matters peculiarly within the competence of the administrative
agency, avoidance of interference with functions of the administrative
agency by withholding judicial action until the administrative process had
run its course, and prevention of attempts to swamp the courts by a resort to
them in the first instance. The underlying principle of the rule rests on the
presumption that the administrative agency, if afforded a complete chance to
pass upon the matter, will decide the same correctly. There are both legal
and practical reasons for this principle. The administrative process is
intended to provide less expensive and more speedy solutions to disputes.
Where the enabling statute indicates a procedure for administrative review,
and provides a system of administrative appeal, or reconsideration, the
courts, for reasons of law, comity and convenience, will not entertain the
case unless the available administrative remedies have been resorted to and
the appropriate authorities have been given an opportunity to act and
correct the errors committed in the administrative forum.
Same; Same; Same; Exceptions; In Paat vs. Court of Appeals, the
Court enumerated the instances when the rule on exhaustion of
administrative remedies may be disregarded.—InPaat vs. Court of Appeals,
the Court enumerated the instances when the rule on exhaustion of
administrative remedies may be disregarded: . . . (1) when there is a
violation of due process, (2) when the issue involved is purely a legal
question, (3) when the administrative action is patently illegal amounting to
lack or excess of jurisdiction, (4) when there is estoppel on the part of the
administrative agency concerned, (5) when there is irreparable injury, (6)
when the respondent is a department secretary whose acts as an alter ego of
the President bear the implied and assumed approval of the latter, (7) when
to require exhaustion of administrative remedies would be unreasonable, (8)
when it would amount to a nullification of a claim, (9) when the subject
matter is a private land in land case proceedings, (10) when the rule does not
provide a plain, speedy and adequate remedy, and (11) when there are
circumstances indicating the urgency of judicial intervention.
147
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an 1act is done contrary
to the Constitution, the law or jurisprudence; or (2) when it is
executed whimsically, 2capriciously or arbitrarily out of malice, ill
will or personal bias. In the present case, the Commission on
Elections approved the assailed Resolution and awarded the subject
Contract not only in clear violation of law and jurisprudence, but
also in reckless disregard of its own bidding rules and procedure.
For the automation of the counting and canvassing of the ballots in
the 2004 elections, Comelec awarded the Contract to “Mega Pacific
Consortium” an entity that had not participated in the bidding.
Despite this grant, the poll body signed the actual automation
Contract with “Mega Pacific eSolutions, Inc.,” a company that
joined the bidding but had not met the eligibility requirements.
Comelec awarded this billion-peso undertaking with inexplicable
haste, without adequately checking and observing mandatory
financial, technical and legal requirements. It also accepted the
proferred computer hardware and software even if, at the time of the
award, they had undeniably failed to pass eight critical requirements
designed to safeguard the integrity of elections, especially the
following three items:
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149
The Case
4
Before us is a Petition under Rule 65 of the Rules of Court, seeking
(1) to declare null and void Resolution No. 6074 of the Commission
on Elections (Comelec), which awarded “Phase II of the
Modernization Project of the Commission to Mega Pacific
Consortium (MPC);” (2) to enjoin the implementation of any further
contract that may have been entered into by Comelec “either with
Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc.
(MPEI);” and (3) to compel Comelec to conduct a re-bidding of the
project.
The Facts
The following facts are not disputed. They were culled from official
documents, the parties’ pleadings, as well as from admissions during
the Oral Argument on October 7, 2003. 5
On June 7, 1995, Congress passed Republic Act 8046, which
authorized Comelec to conduct a nationwide demonstration of a
computerized election system and allowed the poll body to pilottest
the system in the March 1996 elections in the Autonomous Region
in Muslim Mindanao (ARMM).
6
On December 22, 1997, Congress enacted Republic Act 8436
authorizing Comelec to use an automated election system (AES) for
_______________
4 Rollo, Vol. I, pp. 3-48. While petitioners labeled their pleading as one for
prohibition and mandamus, its allegations qualify it also as one for certiorari.
5 An act authorizing the Commission on Elections to conduct a nationwide
demonstration of a computerized election system and pilot-test it in the March 1996
elections in the Autonomous Region in Muslim Mindanao (ARMM) and for other
purposes.
6 An act authorizing the Commission on Elections to use an automated election
system in the May 11, 1998 national or local elections and in subsequent national and
local electoral exercises, providing funds therefor and for other purposes.
150
_______________
151
VOL. 419, JANUARY 13, 2004 151
Information Technology Foundation of the Philippines
vs. Commission on Elections
Bid documents for the three (3) phases may be obtained starting 10
February 2003, during office hours from the Bids and Awards Committee
(BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th
Floor, Palacio del Governador, Intramuros, Manila, upon payment at the
Cash Division, Commission on Elections, in cash or cashier’s check,
payable to the Commission on Elections, of a non-refundable amount of
FIFTEEN THOUSAND PESOS (Php 15,000.00) for each phase. For this
purpose, interested offerors, vendors, suppliers or lessors have the option to
participate in any or all of the three (3) phases of the comprehensive
Automated Election System.
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at
the Session Hall, Commission on Elections, Postigo Street, Intramuros,
Manila. Should there be questions on the bid documents, bidders are
required to submit their queries in writing to the BAC Secretariat prior to
the scheduled Pre-Bid Conference.
Deadline for submission to the BAC of applications for eligibility and
bid envelopes for the supply of the comprehensive Automated Election
152
3.) Ten percent (10%) equity requirement shall be based on the total
project cost; and
4.) Performance bond shall be twenty percent (20%) of the bid offer.
1) A. Due to the decision that the eligibility requirements and the rest of
the Bid documents shall be released at the same time, and the
memorandum of Comm. Resurreccion Z. Borra dated February 7,
2003, the documents to be released on Friday, February 14, 2003 at
2:00 o’clock p.m. shall be the eligibility criteria, Terms of
Reference (TOR) and other pertinent documents;
B. Pre-Bid conference shall be on February 18, 2003; and
_______________
9 Annex “7” of the Comment of Private Respondents MPC and MPEI, Rollo, Vol.
II, p. 638.
153
On February 17, 2003, the poll body released the Request for
Proposal (RFP) to procure the election automation machines. The
Bids and Awards Committee (BAC) of Comelec convened a pre-bid
conference on February 18, 2003 and gave prospective bidders until
March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers,
suppliers and/or distributors forming themselves into a joint venture
may be entertained, provided that the Philippine ownership thereof
shall be at least 60 percent. Joint venture is defined in the RFP as “a
group of two or more manufacturers, suppliers and/or distributors
that intend to be jointly
11
and severally responsible or liable for a
particular contract.”
Basically, the public bidding was to be conducted under a two-
envelope/two stage system. The bidder’s first envelope or the
Eligibility Envelope should establish the bidder’s eligibility to bid
and its qualifications to perform the acts if accepted. On the other
hand, the second envelope would be the Bid Envelope itself. The
RFP outlines the bidding procedures as follows:
_______________
10 Annex “8” of the Comment of Private Respondents MPC and MPEI, Rollo, Vol.
II, pp. 641-642.
11 Annex “G” of the Petition, Request for Proposal, p. 12; Rollo, Vol. I, p. 71.
154
“26.1 The BAC will examine the Bids to determine whether they
are complete, whether any computational errors have been
made, whether required securities have been furnished,
whether the documents have been properly signed, and
whether the Bids are generally in order.
“26.2 The BAC shall check the submitted documents of each
Bidder against the required documents enumerated under
Clause 20, to ascertain if they are all present in the Second
bid envelope (Technical Envelope). In case one (1) or more
of the required documents is missing, the BAC shall rate
the Bid concerned as ‘failed’ and immediately return to the
Bidder its Third bid envelope (Financial Envelope)
unopened. Otherwise, the BAC shall rate the first bid
envelope as ‘passed.’
“26.3 The BAC shall immediately open the Financial Envelopes
of the Bidders whose Technical Envelopes were passed or
rated on or above the passing score. Only Bids that are
determined to contain all the bid requirements for both
components shall be rated ‘passed’ and shall immediately
be considered for evaluation and comparison.
“26.4 In the opening and examination of the Financial Envelope,
the BAC shall announce and tabulate the Total Bid Price as
calculated. Arithmetical errors will be rectified on the
following basis: If there is a discrepancy between words
and figures, the amount in words will prevail. If there is a
discrepancy between the unit price and the total price that is
obtained by multiplying the unit price and the quantity, the
unit price shall prevail and the total price shall be corrected
accordingly. If there is a discrepancy between the Total Bid
Price and the sum of the total prices, the sum of the total
prices prevail and the Total Bid Price shall be corrected
accordingly.
“26.5 Financial Proposals which do not clearly state the Total Bid
Price shall be rejected. Also, Total Bid Price as calculated
that exceeds the approved budget for the contract shall also
be rejected.
27.1 The bid price shall be deemed to embrace all costs, charges
and fees associated with carrying out all the elements of the
proposed Contract, including but not limited to, license
fees, freight charges and taxes.
27.2 The BAC shall establish the calculated prices of all Bids
rated ‘passed’ and rank the same in ascending order.
155
x x x x x x x x x
“29. Postqualification
_______________
156
The Issues
_______________
14 Photocopy appended as Annex “B” of the Petition; Rollo, Vol. I, pp. 52-53.
15 Photocopy appended as Annex “C” of the Petition; Rollo, Vol. I, pp. 54-55.
16 The case was deemed submitted for decision on November 5, 2003, upon this
Court’s receipt of Private Respondent MPC/MPEI’s Memorandum, which was signed
by Attys. Alfredo V. Lazaro, Jr., Juanito I. Velasco, Jr. and Ma. Concepcion V. Murillo
of the Lazaro Law Firm On October 27, 2003, the Court received petitioners’
Memorandum, which was signed by Atty. Alvin Jose B. Felizardo of Pastelero Law
Office, and Public Respondent Comelec’s Memorandum, signed by Comelec Comm.
Florentino A. Tuason, Jr. Apart from these, the Office of the Solicitor General (OSG)
filed another Memorandum on behalf of Comelec, also on October 27, 2003, signed
by Asst. Sol. Gen. Carlos N. Ortega, Asst. Sol. Gen. Renan E. Ramos, Sol. Jane E. Yu
and Asso. Sol. Catherine Joy R. Mallari, with a note that Sol. Gen. Alfredo L.
Benipayo “inhibited himself.” The writing of the Decision in this case was initially
raffled to Justice Dante O. Tinga. However, during the Court’s deliberations, the
present ponente’s then “Dissenting Opinion” to the draft report of Justice Tinga was
upheld by the majority. Hence, the erstwhile Dissent was rewritten into this full
ponencia.
157
_______________
17 Page 11, Rollo, Vol. IV, p. 2390. During the Oral Argument on October 7, 2003,
the Court limited the issues to the following: (1) locus standi of petitioners; (2)
prematurity of the Petition because of non-exhaustion of administrative remedies for
failure to avail of protest mechanisms; and (3) validity of the award and the Contract
being challenged in the Petition.
158
_______________
159
160
Respondent Comelec came out with its en banc Resolution No. 6074
dated April 15, 2003, awarding the project to Respondent MPC even
before the BAC managed to issue its written report and
recommendation on April 21, 2003. Thus, how could petitioners
have appealed the BAC’s recommendation or report to the head of
the procuring entity (the chairman of Comelec), when the Comelec
en banc had already approved the award of the contract to MPC
even before petitioners learned of the BAC recommendation?
25
It is claimed by Comelec that during its April 15, 2003 session,
it received and approved the verbal report and recommendation of
the BAC for the award of the Contract to MPC, and that the BAC
subsequently re-affirmed its verbal report and recommendation by
submitting it in writing on April 21, 2003. Respondents insist that
the law does not require that the BAC Report be in writing before
Comelec can act thereon; therefore, there is allegedly nothing
irregular about the Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the
BAC’s report and recommendation to the head of the procuring
entity (the Comelec chair) only upon their discovery thereof, which
at the very earliest would have been on April 21, 2003, when the
BAC actually put its report in writing and finally released it. Even
then, what would have been the use of protesting/appealing the
report to the Comelec chair, when by that time the Commission en
banc (including the chairman himself)had already approved the
BAC Report and awarded the Contract to MPC?
And even, assuming arguendo that petitioners had somehow
gotten wind of the verbal BAC report on April 15, 2003
(immediately after the en banc session), at that point the
Commission en banc had already given its approval to the BAC
Report along with the award to MPC. To put it bluntly, the Comelec
en banc itself made it legally impossible for petitioners to avail
themselves of the administrative remedy that the Commission is so
impiously harping on. There is no doubt that they had not been
accorded the opportunity to avail themselves of the process provided
under Section 55 of RA 9184, according to which a protest against a
decision of the BAC may be filed with the head of the procuring
entity. Nemo
_______________
25 Respondent Comelec’s Memorandum, pp. 50-51.
161
26
tenetur 27ad impossible, to borrow private respondents’ favorite Latin
excuse.
_______________
162
peso deal, with its claim of having been impelled by only the purest
and most noble of motives.
At any rate, as will be discussed later on, several other factors
combine to lend negative credence to Comelec’s tale.
Second, without necessarily ascribing any premature malice or
premeditation on the part of the Comelec officials involved, it
should nevertheless be conceded that this cart-before-the-horse
maneuver (awarding of the Contract ahead of the BAC’s written
report) would definitely serve as a clever and effective way of
averting and frustrating any impending protest under Section 55.
Having made the foregoing observations, we now go back to the
question of exhausting administrative remedies. Respondents may
not have realized it, but the letter addressed to Chairman Benjamin
28
Abalos, Sr. dated May 29, 2003 serves to eliminate the pre-
maturity issue as it was an actual written protest against the decision
of the poll body to award the Contract. The letter was signed by/for,
inter alia, two of herein petitioners: the Information Technology
Foundation of the Philippines, represented by its president, Alfredo
M. Torres; and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement
to exhaust administrative remedies particularly because it hews
closely to the procedure outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still
holds that petitioners need not exhaust 29
administrative remedies in
the light of Paat v. Court of Appeals. Paat enumerates the instances
when the rule on exhaustion of administrative remedies may be
disregarded, as follows:
_______________
28 Photocopy appended as Annex “B” of the petition.
29 334 Phil. 146; 266 SCRA 167, January 10, 1997.
163
_______________
164
On the question of the identity and the existence of the real bidder,
respondents insist that, contrary to petitioners’ allegations, the
bidder was not Mega Pacific eSolutions, Inc. (MPEI), which
_______________
31 Although by its Resolution 6074, Comelec awarded the bid to MPC, the actual
Contract was entered into by Comelec with MPEI. The Contract did not indicate an
exact date of execution (except that it was allegedly done on the “___ day of May,”)
but it was apparently notarized on June 30, 2003.
165
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public bidding
system designed by Comelec under its RFP (Request for Proposal
for the Automation of the 2004 Election) mandated the use of a two-
envelope, two-stage system. A bidder’s first envelope (Eligibility
Envelope) was meant to establish its eligibility to bid and its
qualifications and capacity to perform the contract if its bid was
accepted, while the second envelope would be the Bid Envelope
itself.
166
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167
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168
Commissioners Not
Aware of Consortium
In this regard, the Court is beguiled by the statements of
Commissioner Florentino Tuason, Jr., given in open court during the
Oral Argument last October 7, 2003. The good commissioner
affirmed that he was aware, of his own personal knowledge, that
169
_______________
170
In any event, the Court notes for the record that Commissioner
Tuason basically contradicted his statements in open court about
there being one written agreement among40 all the consortium
members, when he subsequently referred to 41 the four (4)
Memoranda of Agreement (MOAs) executed by them.
At this juncture, one might ask: What, then, if there are four
MOAs instead of one or none at all? Isn’t it enough that there are
these corporations coming together to carry out the automation
project? Isn’t it true, as respondent aver, that nowhere in the RFP
issued by Comelec is it required that the members of the joint
venture execute a single written agreement to prove the existence of
a joint venture. Indeed, the intention to be jointly and severally
liable may be evidenced not only by a single joint venture
agreement, but also by supplementary documents executed by the
parties signifying such intention. What then is the big deal?
The problem is not that there are four agreements instead of only
one. The problem is that Comelec never bothered to check. It never
based its decision on documents or other proof that would concretely
establish the existence of the claimed consortium or joint venture or
agglomeration. It relied merely on the self-serving representation in
an uncorroborated letter signed by only one individual, claiming that
his company represented a “consortium” of several different
corporations. It concluded forthwith that a consortium indeed
existed, composed of such and such members, and thereafter
declared that the entity was eligible to bid.
True, copies of financial statements and incorporation papers of
the alleged “consortium” members were submitted. But these papers
did not establish the existence of a consortium, as they could have
been provided by the companies concerned for purposes other than
to prove that they were part of a consortium or joint venture. For
instance, the papers may have been intended to show that those
companies were each qualified to be a sub-contractor (and nothing
more) in a major project. Those documents did not by
_______________
40 On pp. 42-43 of the Memorandum of public respondents, filed with this Court
on October 27, 2003, Comm. Tuason himself signed this pleading in his capacity as
counsel of all the public respondents.
41 Copies of these four agreements were belatedly submitted to this Court by
MPEI through a Manifestation with Profuse Apologies filed on October 9, 2003.
171
Sufficiency of the
Four Agreements
Instead of one multilateral agreement executed by, and effective and
binding on, all the five “consortium members”—as earlier claimed
by Commissioner Tuason in open court—it turns out that what was
actually executed were four (4) separate and distinct bilateral
42
Agreements. Obviously, Comelec was furnished copies of these
Agreements only after the bidding process had been terminated, as
these were not included in the Eligibility Documents. These
Agreements are as follows:
_______________
42 Copies of the four separate bilateral agreements were submitted to the Court last
October 9, 2003.
172
Deficiencies Have
Not Been “Cured”
In any event, it is also claimed that the automation Contract awarded
by Comelec incorporates all documents executed by the
“consortium” members, even if these documents are not referred to
therein. The basis of this assertion appears to be the passages from
Section 1.4 of the Contract, which is reproduced as follows:
“All Contract Documents shall form part of the Contract even if they or any
one of them is not referred to or mentioned in the Contract as forming a part
thereof. Each of the Contract Documents shall be mutually complementary
and explanatory of each other such that what is noted in one although not
shown in the other shall be considered contained in all, and what is required
by any one shall be as binding as if required by all, unless one item is a
correction of the other.
“The intent of the Contract Documents is the proper, satisfactory and
timely execution and completion of the Project, in accordance with the
Contract Documents. Consequently, all items necessary for the proper and
173
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174
Enforcement of
Liabilities Problematic
Next, it is also maintained that the automation Contract between
Comelec and the MPEI confirms the solidary undertaking of the lead
company and the consortium member concerned for each particular
Contract, inasmuch as the position of MPEI and anyone
175
176
44
Second, this argument of the OSG in its Memorandum might
possibly apply in the absence of a joint venture agreement or some
other writing that discloses the relationship of the “members” with
one another. But precisely, this case does not deal with a situation in
which there is nothing in writing to serve as reference, leaving
Comelec to rely on mere representations and therefore justifying a
falling back on the rules on partnership. For, again, the terms and
stipulations of the MOAs entered into by MPEI with SK C&C and
WeSolv, as well as the Teaming Agreements of MPEI with
Election.com and ePLDT (copies of which have been furnished the
Comelec) are very clear with respect to the extent and the limitations
of the firms’ respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their
liabilities, while joint and several with MPEI, are limited only to the
particular areas of work wherein their services are engaged or their
products utilized. As for Election.com and ePLDT, their separate
“Teaming Agreements” specifically ascribe to them the role of
subcontractor vis-à-vis MPEI as contractor and, based on the terms
of their particular agreements, neither Election.com nor ePLDT is,
45
with MPEI, jointly and severally liable to Comelec. It follows then
that in the instant case, there is no justification for anyone, much less
Comelec, to resort to the rules on partnership and partners’
liabilities.
Eligibility of a Consortium
Based on the Collective
Qualifications of Its Members
Respondents declare that, for purposes of assessing the eligibility of
the bidder, the members of MPC should be evaluated on a collective
basis. Therefore, they contend, the failure of MPEI to submit
financial statements (on account of its recent incorporation) should
not by itself disqualify MPC, since the other members of the
“consortium” could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the
undertaking of the members of MPC, their contribution of assets and
_______________
44 At p. 38.
45 During the Oral Argument, counsel for public respondents admitted that
Comelec was aware that not all the members of the “consortium” had agreed to be
jointly and solidarily liable with MPEI.
177
_______________
46 232 SCRA 110, 144, May 5, 1994, per Davide, Jr., J.(now C.J.).
178
179
It will be noted that the two Agreements quoted above are very
similar in wording. Neither of them contains any specifics or details
as to the exact nature and scope of the parties’ respective
undertakings, performances and deliverables under the Agreement
with respect to the automation project. Likewise, the two
Agreements are quite bereft of pesos-and-centavos data as to the
amount of investments each party contributes, its respective share in
the revenues and/or profit from the Contract with Comelec, and so
forth—all of which are normal for agreements of this nature. Yet,
according to public and private respondents, the participation of
MPEI, WeSolv and SK C&C comprises fully 90 percent of the entire
undertaking with respect to the election automation project, which is
worth about P1.3 billion.
As for Election.com and ePLDT, the separate “Teaming
Agreements” they entered into with MPEI for the remaining 10
percent of the entire project undertaking are ironically much longer
and more detailed than the MOAs discussed earlier. Although
specifically ascribing to them the role of subcontractor vis-à-vis
MPEI as contractor, these Agreements are, however, completely
devoid of any pricing data or payment terms. Even the appended
Schedules supposedly containing prices of goods and services are
shorn of any
180
181
Let us now move to the second subtopic, which deals with the
substantive issue: the ACM’s failure to pass the tests of the
Department of Science and Technology (DOST).
After respondent “consortium” and the other bidder, TIM, had
submitted their respective bids on March 10, 2003, the Comelec’s
BAC—through its Technical Working Group (TWG) and the DOST
—evaluated their technical proposals. Requirements that were
highly technical in nature and that required the use of certain
equipment in the evaluation process were referred to the DOST for
testing. The Department reported thus:
182
47
TEST RESULTS MATRIX
[Technical Evaluation of Automated Counting Machine]
KEY REQUIREMENTS MEGA- TOTAL
[QUESTIONS] PACIFIC INFORMATION
CONSORTIUM MANAGEMENT
YES NO YES NO
1. Does the machine have an
accuracy rating of at least
99.995 percent?
At COLD environmental √ √
conditions
At NORMAL √ √ √
environmentalconditions
At HARSH environmental √
conditions
2. Accurately records and √ √
reports the date and time of the
start and end of counting of
ballots per precinct?
3. Prints election returns √ √
without any loss of date during
generation of such reports?
4. Uninterruptible backup √ √
power system, that will engage
immediately to allow operation
of at least 10 minutes after
outage, power surge or
abnormal electrical
occurrences?
5. Machine reads two-sided √ √
ballots in one pass?
Note: This
particular
requirement
needs
further
verification
6. Machine can detect √ √
previously counted ballots and
prevent previously counted
ballots from being counted
more than once?
7. Stores results of counted √ √
votes by precinct in external
Note: This
(removable) storage device?
particular
_______________
47 Culled from table 6, DOST Report; Rollo, Vol. II, pp. 1059-1072.
183
184
185
186
According to respondents, it was only after the TWG and the DOST
had conducted their separate tests and submitted their respective
reports that the BAC, on the basis of these reports formulated its
comments/recommendations on the bids of the consortium and TIM.
The BAC, in its Report dated April 21, 2003, recommended that
the Phase II project involving the acquisition of automated counting
machines be awarded to MPEI. It said:
“After incisive analysis of the technical reports of the DOST and the
Technical Working Group for Phase II—Automated Counting Machine, the
BAC considers adaptability to advances in modern technology to ensure an
effective and efficient method, as well as the security and integrity of the
system.
“The results of the evaluation conducted by the TWG and that of the
DOST (14 April 2003 report), would show the apparent advantage of Mega-
Pacific over the other competitor, TIM.
“The BAC further noted that both Mega-Pacific and TIM obtained some
‘failed marks’ in the technical evaluation. In general, the ‘failed marks’ of
Total Information Management as enumerated above affect the counting
machine itself which are material in nature, constituting noncompliance to
the RFP. On the other hand, the ‘failed marks’ of Mega-Pacific are mere
formalities on certain documentary requirements which the BAC may waive
as clearly indicated in the Invitation to Bid.
“In the DOST test, TIM obtained 12 failed marks and mostly attributed
to the counting machine itself as stated earlier. These are requirements of the
RFP and therefore the BAC cannot disregard the same.
“Mega-Pacific failed in 8 items however these are mostly on the software
which can be corrected by reprogramming the software and therefore can be
readily corrected.
“The BAC verbally inquired from DOST on the status of the retest of the
counting machines of the TIM and was informed that the report will be
forthcoming after the holy week. The BAC was informed that the retest is
on a different parameters they’re being two different machines being tested.
One purposely to test if previously read ballots will be read again and the
other for the other features such as two sided ballots.
187
“The said machine and the software therefore may not be considered the
same machine and program as submitted in the Technical proposal and
therefore may be considered an enhancement of the original proposal.
“Advance information relayed to the BAC as of 1:40 PM of 15 April
2003 by Executive Director Ronaldo T. Viloria of DOST is that the result of
the test in the two counting machines of TIM contains substantial errors that
may lead to the failure of these machines based on the specific items of the
RFP that DOST has to certify.
_______________
188
189
Inability to Print
the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7,
indicate that the ACMs of both bidders were unable to print the
audit trail without any loss of data. In the case of MPC, the audit
trail system was “not yet incorporated” into its ACMs.
190
191
_______________
192
_______________
vide source code, but this is useful only if you are an experienced programmer.
193
Correction of Defects?
To their Memorandum, public respondents proudly appended 19
Certifications issued by DOST declaring that some 285 counting
machines had been tested and had passed the acceptance testing
conducted by the Department on October 8-18, 2003. Among those
tested were some machines that had failed previous tests, but had
undergone adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in
what manner and by what standards or criteria the condition,
performance and/or readiness of the machines were re-evaluated and
re-appraised and thereafter given the passing mark. Apart from that
fact, the remedial efforts of respondents were, not surprisingly,
apparently focused again on the machines—the hardware. Nothing
was said or done about the software—the deficiencies as to detection
and prevention of downloading and entering previously downloaded
data, as well as the capability to print an audit trail. No matter how
many times the machines were tested and re-tested, if nothing was
done about the programming defects and deficiencies, the same
danger of massive electoral fraud remains. As anyone who has a
modicum of knowledge of computers would say, “That’s
elementary!”
And only last December 5, 2003, an Inq7.net news report quoted
the Comelec chair as saying that the new automated poll system
194
Comelec’s Latest
“Assurances” Are
Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our
apprehensions. They merely affirm and compound the serious
violations of law and gravely abusive acts it has committed. Let us
examine them.
The Resolution issued by this Court on December 9, 2003
required respondents to inform it as to the number of ACMs
delivered and paid for, as well as the total payment made to date for
the purchase thereof. They were likewise instructed to submit a
certification from the DOST attesting to the number of ACMs tested,
the number found to be defective; and “whether the reprogrammed
software has been tested and found to have complied with the
50
requirements under Republic Act No. 8436.”
In its “Partial Compliance and Manifestation” dated December
29, 2003, Comelec informed the Court that 1,991 ACMs had al-
_______________
50 The key passages of the Court’s Resolution of December 9, 2003 were cited and
reproduced verbatim in the Comelec’s Partial Compliance and Manifestation.
195
“The Automated Counting and Canvassing Project involves not only the
manufacturing of the ACM hardware but also the development of three (3)
types of software, which are intended for use in the following:
_______________
196
that would run them, it is now even clearer that the Contract was
awarded without Comelec having seen, much less evaluated, the
finalproduct—the software that would finally be utilized come
election day. (Not even the “near-final” product, for that matter).
What then was the point of conducting the bidding, when the
software that was the subject of the Contract was still to be created
and could conceivably undergo innumerable changes before being
considered as being in final form? And that is not all!
197
"It should be noted that a total of 18 units have failed the test. Out of
these 18 units, only (1) unit has failed the retest.
"Thank you and we hope you will find everything in order.
“Very truly yours,
_______________
_______________
53 For example, one can conduct tests to see if certain machines will tip over and
fall on their sides when accidentally bumped, or if they have a tendency to collapse
under their own weight. A less frivolous example might be that of conducting the
same tests, but lowering the bar or passing mark.
199
200
200 SUPREME COURT REPORTS ANNOTATED
Information Technology Foundation of the Philippines
vs. Commission on Elections
all the other distinct and diverse activities pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid
little attention to the counting and canvassing software during the
entire bidding process, which took place in February-March 2003.
Granted that the software was defective, could not detect and
prevent the re-use of previously downloaded data or produce the
audit trail—aside from its other shortcomings—nevertheless, all
those deficiencies could still be corrected down the road. At any
rate, the software used for bidding purposes would not be the same
one that will be used on election day, so why pay any attention to its
defects? Or to the Comelec’s own bidding rules for that matter?
Clearly, such jumbled ratiocinations completely negate the
rationale underlying the bidding process mandated by law.
At the very outset, the Court has explained that Comelec
flagrantly violated the public policy on public biddings (1) by
allowing MPC/MPEI to participate in the bidding even though it was
not qualified to do so; and (2) by eventually awarding the Contract
to MPC/MPEI. Now, with the latest explanation given by Comelec,
it is clear that the Commission further desecrated the law on public
bidding by permitting the winning bidder to change and alter the
subject of the Contract (the software), in effect allowing a
substantive amendment without public bidding.
This stance is contrary to settled jurisprudence requiring the strict
application of pertinent rules, regulations and guidelines for public
bidding for the purpose of placing each bidder, actual or potential,
on the same footing. Theessence of public bidding is, after all, an
opportunity’ for fair competition, and a fair basis for the precise
comparison of bids. In common parlance, public bidding aims to
“level the playing field.” That means each bidder must bid under the
same conditions; and be subject to the same guidelines, requirements
and limitations, so that the best offer or lowest bid may be
determined, all other things being equal.
Thus, it is contrary to the very concept of public bidding to
permit a variance between the conditions under which bids are
invited and those under which proposals are submitted and
approved; or, as in this case, the conditions under which the bid is
won and those under which the awarded Contract will be complied
with. The substantive amendment of the contract bidded out, without
any public bidding—after the bidding process had been concluded—
is
201
VOL. 419, JANUARY 13, 2004 201
Information Technology Foundation of the Philippines
vs. Commission on Elections
_______________
54 In the December 15, 2003 issue of the Philippine Daily Inquirer is an item titled
“Digital ‘dagdag-bawas’: a nonpartisan issue” by Dean Jorge Bocobo, from which the
following passages appear:
202
all the machines and defective software already paid for in the
amount of P849 million of our tax money? Even more important,
what will happen to our country in case of failure of the
automation?
The Court cannot grant the plea of Comelec that it be given until
February 16, 2004 to be able to submit a “certification relative to the
additional elements of the software that will be customized,”
because for us to do so would unnecessarily delay the resolution of
this case and would just give the poll body an unwarranted excuse to
postpone the 2004 elections. On the other hand, because such
certification will not cure the gravely abusive actions complained of
by petitioners, it will be utterly useless.
Is this Court being overly pessimistic and perhaps even engaging
in speculation? Hardly. Rather, the Court holds that Comelec should
not have gambled on the unrealistic optimism that the supplier’s
software development efforts would turn out well. The Commission
should have adopted a much more prudent and judicious approach to
ensure the delivery of tried and tested software, and readied
alternative courses of action in case of failure. Considering that the
nation’s future is at stake here, it should have done no less.
_______________
203
Epilogue
Once again, the Court finds itself at the crossroads of our nation’s
history. At stake in this controversy is not just the business of a
computer supplier, or a questionable proclamation by Comelec of
one or more public officials. Neither is it about whether this country
should switch from the manual to the automated system of counting
and canvassing votes. At its core is the ability and capacity of the
Commission on Elections to perform properly, legally and prudently
its legal mandate to implement the transition from manual to
automated elections.
Unfortunately, Comelec has failed to measure up to this historic
task. As stated at the start of this Decision, Comelec has not merely
gravely abused its discretion in awarding the Contract for the
automation of the counting and canvassing of the ballots. It has also
put at grave risk the holding of credible and peaceful elections by
shoddily accepting electronic hardware and software that admittedly
failed to pass legally mandated technical requirements. Inadequate
as they are, the remedies it proffers post facto do not cure the grave
abuse of discretion it already committed (1) on April 15, 2003, when
it illegally made the award; and (2) “sometime” in May 2003 when
it executed the Contract for the purchase of defective machines and
non-existent software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable and
unconscionable to place its imprimatur on this void and illegal
transaction that seriously endangers the breakdown of our electoral
system. For this Court to cop-out and to close its eyes to these illegal
transactions, while convenient, would be to abandon its
constitutional duty of safeguarding public interest.
As a necessary consequence of such nullity and illegality, the
purchase of the machines and all appurtenances thereto including the
still-to-be-produced (or in Comelec’s words, to be “reprogrammed”)
software, as well as all the payments made therefor, have no basis
whatsoever in law. The public funds expended pursuant to the void
Resolution and Contract must therefore be recovered from the
payees and/or from the persons who made possible the illegal
disbursements, without prejudice to possible criminal prosecutions
against them.
Furthermore, Comelec and its officials concerned must bear full
responsibility for the failed bidding and award, and held account-
204
204 SUPREME COURT REPORTS ANNOTATED
Information Technology Foundation of the Philippines
vs. Commission on Elections
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205
VOL. 419, JANUARY 13, 2004 205
Information Technology Foundation of the Philippines
vs. Commission on Elections
CONCURRING OPINION
YNARES-SANTIAGO, J.:
_______________
A long line of cases establishes the basic rule that regular courts of
justice should not interfere in matters which are addressed to the
sound discretion of government agencies entrusted with the
regulation of activities coming under the special technical
4
knowledge and training of such agencies. The underlying principle
of the rule on exhaustion of administrative remedies rests on the
presumption that when the administrative body, or grievance
machinery, is afforded a chance to pass upon the matter, it will
5
decide the same correctly.
_______________
207
_______________
6 Paat v. Court of Appeals, 334 Phil. 146; 266 SCRA 167 (1997).
7 Quisumbing v. Judge Gumban, G.R. No. 85156, 5 February 1991, 193 SCRA
520; Salinas v. National Labor Relations Commission, G.R. No. 114671, 24
November 1999, 319 SCRA 54; Samson v. National Labor Relations Commission, 32
Phil. 135; 253 SCRA 112 (1996). See SEVERIANO S. TABIOS, Annotation on
Failure to Exhaust Administrative Remedies as a Ground for Motion to Dismiss, 165
SCRA 352, 357-362 (1988).
8 Eastern Shipping Lines v. Philippine Overseas Employment Agency, G.R. No. L-
76633, 18 October 1988, 166 SCRA 533; Paat v. Court of Appeals, 334 Phil. 146;
266 SCRA 167 (1997).
9 Industrial Power Sales, Inc. v. Sinsuat, G.R. No. L-29171, 15 April 1988, 160
SCRA 19.
10 Vda. de Tan v. Veterans Backpay Commission, 105 Phil. 377 (1959).
11 De Lara, Jr. v. Cloribel, 121 Phil. 1062; 14 SCRA 269 (1965).
12 Demaisip v. Court of Appeals, 106 Phil. 237 (1959).
13 Cipriano v. Marcelino, 150 Phil. 336; 43 SCRA 291 (1972).
14 Alzate v. Aldana, 107 Phil. 298 (1960).
15 Soto v. Jareno, G.R. No. L-38962, 15 September 1986, 144 SCRA 116.
208
16
the urgency of judicial intervention, as when public interest is
17
involved.
There is no plainer example of a case in which the issues are of
transcendental importance. The preservation of an honest, upright
system of electing our nation’s public officers bears urgent public
interest considerations. More, as I will discuss below, the
administrative action involved here is patently illegal, amounting to
lack or excess of jurisdiction.
These two reasons warrant the relaxation of the rule of
exhaustion of administrative remedies.
_______________
16 Quisumbing v. Judge Gumban, G.R. No. 85156, 5 February 1991, 193 SCRA 520;
Indiana Aerospace University v. Commission on Higher Education (CHED), G.R. No. 139371,
4 April 2001, 356 SCRA 367.
17 Indiana Aerospace University v. Commission on Higher Education (CHED), G.R. No.
139371, 4 April 2001, 356 SCRA 367, citing Liberty Insurance Corp. v. Court of Appeals, 222
SCRA 37, 47 (1993); Alindao v. Joson, 264 SCRA 211, 220 (1996); Tan v. Court of Appeals,
275 SCRA 568, 574-575 (1997); and Tan Jr. v. Sandiganbayan, 292 SCRA 452, 457-458
(1998).
209
18
particular contract, provided Filipino ownership thereof shall be 60%.
(italics supplied)
There are therefore three qualifications for eligibility under the RFP.
First, the manufacturers, suppliers and/or distributors must expressly
form themselves into a joint venture. Second, this joint venture must
demonstrate an intent that the individual members be jointly and
severally liable for a particular contract. Finally, the Filipino
ownership of the joint venture must be 60%.
Whereas the RFP does not require the members of the joint
venture to execute a single document to constitute the joint venture,
there must be sufficient evidence that such a joint venture was
indeed formed, whether this evidence is a single document, or a
multiplicity of documents. It is plain that the “joint venture” must be
formed as a single entity, responsible for the entirety of the contract,
even if separate agreements among the individual members of the
joint venture would lay out the specific tenor of the obligations to
each other; otherwise, it would be impossible to evaluate the
nationality of this joint venture, which nationality is the third
requirement for eligibility.
Conspicuously absent from the records of this case are
documents that demonstrate that the individual members of the so-
called “Consortium” actually formed or constituted themselves into
a joint venture. Jurisprudence discussing a joint venture lays out the
rule that such an entity “presupposes generally a parity of standing
between the joint co-ventures or partners, in which each party has an
equal proprietary interest in the capital or property contributed, and
where each party exercises equal rights in the conduct of the
19
business.”
InAurbach, et al. v. Sanitary Wares Manufacturing Corporation,
20
et al., we expressed the view that a joint venture may be likened to
a partnership, thus:
_______________
18 RFP, at p. 12.
19 Sevilla v. Court of Appeals, G.R. Nos. L-41182-83, 15 April 1988, 160 SCRA 171.
20 G.R. No. 75875, 15 December 1989, 180 SCRA 130.
210
_______________
21 Rollo, p. 2355.
22Id.,p. 2364
23Id., pp. 2355 and 2364.
24Id., pp. 2358 and 2367.
25Id., pp. 2355 and 2364.
26Id.
27Id., p. 2348.
28Id.
212
WeSolv shall be jointly and severally liable with Mega Pacific only for the
30
particular products and/or services supplied by the former for the Project.
_______________
29Id.
30Id., p. 2349.
31Id., p. 2352.
32Id.
33Id., p. 2353.
213
VOL. 419, JANUARY 13, 2004 213
Information Technology Foundation of the Philippines
vs. Commission on Elections
214
214 SUPREME COURT REPORTS ANNOTATED
Information Technology Foundation of the Philippines
vs. Commission on Elections
—and—
All Contract Documents shall form part of the Contract even if they or
any one of them is not referred to or mentioned in the Contract as forming a
part thereof. Each of the Contract Documents shall be mutually
complementary and explanatory of each other such that what is noted in one
although not shown in the other shall be as binding as if required by all,
unless one item is a correction of the other.
The Intent of the Contract Documents is the proper, satisfactory, and
timely execution and completion of the Project in accordance with the
Contract Documents. Consequently, all items necessary for the proper and
timely execution and completion of the Project shall be deemed included in
the Contract.
_______________
_______________
216
_______________
47 Rollo, p. 1408.
48Id., pp. 1870; 1954; 2052.
49 Lopez v. Piatco, G.R. No. 155661, 5 May 2003, 402 SCRA 612.
217
favorable to it that were not previously made available to the other bidders.
_______________
50 A. Cobacha & D. Lucenario, LAW ON PUBLIC BIDDING AND
GOVERNMENT CONTRACTS 13 (1960).
218
CONCURRING OPINION
SANDOVAL-GUTTERREZ, J.:
_______________
219
3
On December 22, 1997, Congress enacted Republic Act No. 8436
authorizing the Commission on Election (COMELEC) to use an
automated election system for the process of voting, counting of
votes and consolidating results of the national and local elections. It
mandated the COMELEC to acquire automated counting machines
4
(ACM), computer equipment, devices and materials.
Accordingly, the COMELEC issued an Invitation to Bid on
January 28, 2003, inviting interested bidders to apply for eligibility
and to bid for the supply and delivery of the ACM with an estimated
5
budget of P2,500,000,000.00.
On February 17, 2003, the COMELEC released to the public the
“Request for Proposal” providing that bids from manufacturers,
suppliers and/or distributors forming themselves into a joint venture
may be entertained as long as the Filipino ownership thereof shall be
at least 60%. For this purpose, a joint venture was defined as “a
group of two (2) or more manufacturers, suppliers and/or
distributors that intend to be jointly and severally responsible or
6
liable for the contract.”
The next day, February 18, 2003, the Bids and Awards
Committee (BAC) convened a pre-bid conference and gave
prospective bidders until March 10, 2003 to submit their bid
proposals.
On March 10, 2003, Mega Pacific Consortium (MP
CONSORTIUM) submitted its bid. Enclosed in it bidding documents
was a letter dated March 7, 2003 expressing that Mega Pacific
eSolutions, Inc. (MPEI), Election. Com, Ltd. (Election.Com), We
Solv Open Computing, Inc. (We Solv), SK C&C, ePLDT and Oracle
Sys-
_______________
220
_______________
221
tation of the contract that may have been entered into by COMELEC
either with MP CONSORTIUM or MPEI; and (3) to compel
COMELEC to conduct a re-bidding of the Project.
After carefully reviewing the records of this case, I find the
exhaustive ponencia of Mr. Justice Artemio V. Pangamban worthy
of my fullest concurrence.
First, I must deal with the procedural roadblocks.
Petitioners come to us via a petition for prohibition and
mandamus, thus, it is argued that the recourse taken is improper. It is
a well established rule, particularly in public biddings, that courts
cannot compel an agency to do a particular act or to enjoin such act
within its prerogative or discretion. This is not an iron-clad rule. One
noted exception is when in the exercise of its authority it gravely
8
abuses or exceeds its jurisdiction. Judicial review may be justified on
the grounds of grave abuse of discretion, arbitrary rejection of bids,
9
and lack of freedom of competition among bidders. In the case at
bar, petitioners alleged in their petition that public respondents
“acted without or in excess of its jurisdiction or with grave abuse of
10
discretion” when they awarded the Project to MPEI. Thus, the
following pronouncement of this Court in JG Summit Holdings, Inc.
11
vs. Court of Appeals deserves reiteration:
Be that as it may, the Court of Appeals erred when it dismissed the petition
on the sole ground of the impropriety of the special civil action of
mandamus. It must be stressed that the petition was also one for certiorari,
seeking to nullify the award of the sale to private respondent of the
PHILSECO shares. Verily, the petition alleges that ‘respondents COP and
APT have committed such a grave abuse of discretion tantamount to lack or
excess of their jurisdiction in insisting on awarding the bid to Philyards, for
the various reasons stated herein, particularly since the right of first refusal
and the right to top the bid are unconstitutional, contrary to law and public
policy.’ Petitioner’s failure to include certiorari in its caption should not
negate the fact that the petition charged public respondent with grave abuse
of discretion in awarding the sale to private respondent. Well-
_______________
8 Republic of the Philippines vs. Silerio, G.R. No 108869, May 6, 1997, 272 SCRA 280,
citing Provident Tree Farms, Inc. vs. Batano, Jr., 231 SCRA 471 (1994), Lim, Sr. v. Secretary of
Agriculture and Natural Resources, 34 SCRA 751 (1970).
9 50 SCRA 498-499 (1973).
10 Petition at p. 39.
11 G.R. No. 124293, November 20, 2000, 345 SCRA 143.
222
settled is the rule that it is not the caption of the pleading but the allegations
therein that determine the nature of the action and the Court shall grant
relief warranted by the allegations and the proof even if no such relief is
prayed for.
_______________
223
14
9184 considering that the assailed award was made known to the
public only on May 16, 2003 or more than one (1) month from the
time Resolution No. 6074 was promulgated. Respondents would
15
argue that under the subsequent provision, Section 58 of the same
Rule, the court which has jurisdiction over final decisions of the
head of the procuring entity is the Regional Trial Court. This is not
really a legal obstacle. In Commission on Elections vs. Quijano-
16
Padilla, we ruled that: “[T]he doctrine of hierarchy of courts is not
an iron-clad dictum. On several instances where this Court was
confronted with cases of national interest and of serious
implications, it never hesitated to set aside the rule and proceed with
17
the judicial determination of the case. The case at bar is of similar
import. It is in the interest of the State that questions relating to
government contracts be settled without delay. This is more so when
_______________
55.1 Decisions of the BAC with respect to the conduct of bidding may be
protested in writing to the head of the procuring entity; Provided, however, That a
prior motion for reconsideration should have been filed by the party concerned within
the reglementary periods specified in this IRR-A and the same has been resolved. The
protest must be resolved filed within seven (7) calendar days from receipt by the party
concerned of the resolution of the BAC denying its motion for reconsideration. A
protest may be made by filing a verified position paper with the head of the procuring
agency concerned, accompanied by the payment of a non-refundable protest fee. The
non-refundable protest fee shall be in an amount equivalent to no less than one
percent (1%) of the ABC.
14 An Act Providing for the Modernization, Standardization, and Regulation of the
Procurement Activities of the Government and for Other Purposes.
15Section 58. Resort to Regular Courts: Certiorari.
58.1 Court action may be resorted to only after the protests contemplated in this Rule shall have
been completed, i.e., resolved by the head of the procuring entity with finality. The regional
trial court shall have jurisdiction over final decisions of the head of the procuring entity. Court
actions shall be governed by Rule 65 of the 1997 Rules of Civil Procedure.
224
“(1) audited financial statements of the Bidder’s firm for the last
three (3) calendar years, stamped “RECEIVED” by the
appropriate government agency, to show its capacity to
finance the manufacture and supply of Goods called for and
a statement or record of volumes of sales;
(2) Balance Sheet;
(3) Income Statement; and
(4) Statement of Cash Flow.”
_______________
225
_______________
19 In open court, Atty. Lazaro, counsel for private respondent Mega Pacific
eSolutions, Inc. was directed by this Court to submit the following documents:
226
_______________
21 The MOA between MPEI and SK C&C was entered only on March 9, 2003.
22 Rollo, Vol. IV at pp. 2355-2363.
23Id.,at pp. 2364-2371.
24 JG Summit Holdings, Inc. vs. Court of Appeals, supra.
25 Villanueva, Philippine Corporate Law, 2002 at p. 917.
227
The agreements cited above do not show that each of the alleged
members of the MP CONSORTIUM recognizes the latter as an
entity with a separate and distinct juridical personality. What is
more, its member limits its liability only to the extent of their
participation.
Surely, it is grave abuse of discretion on the part of the
COMELEC to award a billion worth of contract to an entity whose
existence and eligibility is highly questionable. It risks the
accomplishment of a great undertaking such as the automation of
our country’s election system. From a brief survey of the four (4)
agreements, I am convinced that the COMELEC, and ultimately the
people, stand on the losing end should the Project fail because of the
obvious difficulty in determining where the culpability lies.
It bears reiterating for the consumption of our public officers that
in the exercise of their contracting prerogative, they should be the
first judges of the legality, propriety and wisdom of the contract they
entered into. They must exercise a high degree of caution so that the
Government may not be the victim of ill-advised or improvident
27
action. Prudence should be their primordial virtue. Thus, even
though they have broad discretion to determine the qualifications of
the bidders, it may not act arbitrarily and they must conform to
statutory requirements governing the awarding of
_______________
228
28
public contracts. Reason must govern the acts of such officials, and
courts will not hesitate to interfere when it is clearly made to appear
that they have acted arbitrarily, dishonestly or beyond the
reasonable limits of the discretion conferred upon them.
Another arbitrary act of the COMELEC is its awarding of the
contract to MPEI despite the fact that it failed in some of the
technical requirements.
_______________
28 64 Am Jur 2d § 64.
229
230
231
_______________
232
I join Mr. Justice Jose C. Vitug in his separate opinion and strongly
recommend, for the reasons therein stated, that this case be
DISMISSED.
Let me further add other compelling reasons which strengthen
my view that this case should be dismissed.
The Court did not issue a Temporary Restraining Order in this
case. This showed an initial finding that on its face the allegations in
the petition were insufficient to justify or warrant the grant of a
temporary restraining order. In the meantime then the parties were
not barred from performing their respective obligations under the
contract. As of today, the COMELEC has already paid a large
portion of its contracted obligation and the private respondent has
delivered the contracted equipment for automation. It is to be
reasonably presumed that during the same period the COMELEC
focused its attention, time and resources toward the full and
successful implementation of the comprehensive Automated
Election System for the May 2004 elections. Setting aside the
contract in question at this late hour may have unsettling, disturbing
and even destabilizing effect. For one, it will leave the COMELEC
insufficient time to prepare for a non-automated electoral process,
i.e., the manual process, which would necessarily include the
acquisition of the security paper and the purchase of a “dandy roll”
to watermark the ballot paper, printing of other election forms, as
well as the bidding and acquisition of the ballot boxes. For another,
the law on Automated Election System (R.A. 8436) and Executive
Order No. 172 (24 January 2003) which allocated the sum of P2.5
Billion, and Executive Order No. 175 (10 February 2003) which
allocated the additional sum of P500 Million for the implementation
in the May 2004 elections of the Automated Election System would
be put to naught as there is absolutely no more time to conduct a re-
bidding.
Finally, there is no suggestion that graft and corruption attended
the bidding process, or that the contract price is excessive or
unreasonable. All that the petitioners claim is that “the bidding and
the award process was fatally flawed. The public respondents acted
without or excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction when it [sic]
233
SEPARATE OPINION
VITUG, J.:
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234
234 SUPREME COURT REPORTS ANNOTATED
Information Technology Foundation of the Philippines
vs. Commission on Elections
DISSENTING OPINION
TINGA, J.:
Prologue
Once again, the Court availing of its extraordinary powers or so-
called “certiorari” jurisdiction has struck down a government
contract, sealed no less by the respondent Commission on Elections
(COMELEC) in the exercise of its administrative powers granted
_______________
_______________
236
6
quate remedy in the ordinary course of law. Mandamus, on the other
hand, is an extraordinary writ commanding a tribunal, corporation,
board, officer or person, immediately or at some other specified
time, to do the act required to be done, when the respondent
unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or
station, or when the respondent excludes another from the use and
enjoyment of a right or office to which such other is entitled, and
there is no other
7
plain, speedy and adequate remedy in the ordinary
course of law.
Second. In deciding the instant case, the Court shall consider only
the undisputed or admitted facts and resolve only the specific
8
questions raised by the parties. The Court9
is not a repository of
remedies or a “super-legal-aid bureau.” We cannot grant relief for
every perceived violation of the law or worse, on the basis of
prophetic wisdom. Paraphrasing an old decision, Mr. Justice Felix
Frankfurter wrote: “Judicial power, however large, has an orbit more
or less strictly defined by well-recognized presuppositions regarding
the kind of business that properly belongs to courts. Their business
is adjudication, not speculation. They are concerned10
with actual,
living controversies, and not abstract disputation.”
Third.The Court does not, as indeed it cannot, guarantee the
success of the automation or the integrity of the coming elections. It
is not the Court’s function to actively ensure that the automation is
successfully implemented or that the elections are made free of
fraud, violence, terrorism and other threats to the11sanctity of the
ballot. This duty lies primarily with the COMELEC.
_______________
6 Sec. 2.
7 Sec. 3.
8 For instance, issues covering Phase I (Voters’ Registration and Validation
System) and Phase III (Electronic Transmission) which were raised in the media are
not before the Court.
9 Dissenting opinion of Mr. Justice Felix Frankfurter, Uveges v. Commonwealth of
Pennsylvania, 335 U.S. 437.
10 Frankfurter, Felix Frankfurter on the Supreme Court Extra Judicial Essays on
the Court and the Constitution, 1970, p. 339, citing United States v. Ferreira, 1 How.
40 (1851).
11E.g., the COMELEC has to promulgate new rules on casting of votes,
appreciation, counting and canvassing of ballots, conduct a voters’ education program
on the automated system and train personnel who will operate the ACMs.
237
12 Cauton v. Commission on Elections, G.R. No. L-25467, April 27, 1967, 19 SCRA 911.
13 73 Phil. 288 (1942).
14Id., at pp. 295-296.
238
The amount of the protest fee and the periods during which the protestsmay
be filed and resolved shall be specified in the IRR.
SEC. 56. Resolution of Protests.—The protests shall be resolved strictly
on the basis of the records of the BAC. Up to a certain amount to be
specified in the IRR, the decisions of the Head of the Procuring Entity shall
be final.
SEC. 57. Non-interruption of the Bidding Process.—In no case shall any
protest taken from any decision treated in this Article stay or delay the
bidding process. Protests must first be resolved before any award is made.
SEC. 58. Resort to Regular Courts; Certiorari.—Court action may be
resorted to only after the protests contemplated in this Article shall be have
been completed. Cases that are filed in violation of the process specified in
this Article shall be dismissed for lack of jurisdiction. The regional trial
court shall have jurisdiction over final decisions of the head of the procuring
entity. Court actions shall be governed by Rule 65 of the 1997 Rules of Civil
Procedure.
This provision is without prejudice to any law conferring on the Supreme
Court the sole jurisdiction to issue temporary restraining orders and
injunctions relating to Infrastructure Projects of Government.” [Emphasis
supplied]
16
16
Hon. Carale v. Hon. Abarintos, the Court enunciated the reasons
for the doctrine, thus:
_______________
239
_______________
240
_______________
20Id.,at p. 153.
21 Sec. 55.
22 Pars. (a) & (d) Sec. 5, Code of Conduct and Ethical Standards for Public
Officials and Employees.
241
1. Letter of MPEI’s President, Willy Yu, dated March 7, 2003, which states:
March 7, 2003
Sir:
242
(Sgd.) WILLY U. YU
President
MEGA PACIFIC eSOLUTIONS, INC.
(Lead Company/Proponent)
For: MEGA PACIFIC CONSORTIUM
243
244
At this juncture, undersigned would just like to inform the bank that, in case of a
vote, he will be voting on the basis of the results of the first test participated by both
bidders as called for under the terms of the bid.”
The MOA between MPEI and SK C&C dated March 9, 2003, also
reproduced in the Decision, contains similar provisions:
It appears that the Court assumed that the documents which establish
the existence of the consortium were not with the COMELEC and it
23
had no basis for determining that the consortium had existence
during the bidding process simply because the docu-
_______________
245
In open court, Atty. Lazaro, counsel for private respondent Mega Pacific
eSolutions, Inc., was DIRECTED by the Court to submit the following
documents, a day after the hearing:
Clearly, the directive was addressed to Atty. Alfredo Lazaro, Jr. So,
it was he who had to submit the documents and he did so on October
10, 2003. The COMELEC was not required to submit any
document. But since the DOST status report which is among the
documents mentioned in the Resolution was not in the custody of
MPEI, the COMELEC elected to submit it along with the
“Eligibility Requirements” folder.
Obviously to prop up the hypothesis that the COMELEC was
unaware of the consortium agreements during the bidding process,
the majority picked on Commissioner Florentino Tuason, Jr. and
portions of his answers to the questions asked of him during the oral
arguments. Although he was evidently not the Commissioner
assigned to speak on behalf of the COMELEC but Commissioner
Resureccion Borra, Commissioner Tuason deferred to the Court and
responded to the questions as best as he could. To put the answers in
context, I quote them in full along with the questions.
_______________
24 Resolution, p. 3.
246
JUSTICE QUISUMBING:
May I know if somebody from the Commission on Elections
who knows the elements of the so-called verbal agreement on
solidary liability of all the parties of this Mega Pacific,
whatever it is?
Do you know anybody from the COMELEC who knows the
elements of this oral agreement if any?
CHIEF JUSTICE:
Yes, would Commissioner Borra be willing to help the
Assistant Sol. Gen.?
ASG RAMOS:
Perhaps Commissioner Tuason could speak to this Court with
regard to that matter.
CHIEF JUSTICE:
Commissioner Tuason.
Yes, Commissioner Tuazon would you be able to enlighten the
Court on the questions profounded (sic) by Justice Vitug and
the request of Justice Quisumbing?
COMMISSIONER TUASON:
Good morning, Your Honors, I am sorry for my attire
(interrupted)
CHIEF JUSTICE:
It is okay, we did not expect you really to argue but there seems
to be an orderly information for the enlightenment of the Court.
COMMISSIONER TUASON:
As far as I know, your Honor, I am not in-charge of the, I am
not In-charge of the phase 2, which is the Modernization
Program, I am here because I am in-charge of the Legal
Department and I oversee the legal activities of COMELEC.
CHIEF JUSTICE:
Who is in-charge then?
COMMISSIONER TUASON:
Insofar as a written agreement among the members of the
consortium there is Your Honor, I was privy to the fact that
when we were having conferences with the legal counsel of the
private respondent there is indeed an agreement among the
members of the consortium. That is my personal knowledge,
Your Honor.
CHIEF JUSTICE:
Writing or (interrupted)
247
COMMISSIONER TUASON:
In writing, Your Honor, because the so-called agreement
amongst the members of the consortium is of course an internal
affair or an internal matter between the members of the
consortium. But I do, I am aware of the fact that there is indeed
a written agreement, Your Honor. And I am sure that when the
time that the counsel for the private respondent will argue
before this Honorable Court he will be presenting the written
agreement amongst the members of the consortium.
JUSTICE VITUG:
Are you telling us that the COMELEC did not look into this
matter?
COMMISSIONER TUASON:
I do think that they did, Your Honor, because I am not a
member of the BAC, I am not the Commissioner-in-charge of
the Phase II but I am aware that there is such agreement, Your
Honor, which will be presented today and I think that this was
25
taken into consideration (interrupted)
COMMISSIONER TUASON:
We did Your Honor because we asked the BAC on whether all
these documents including the joint venture agreement or
consortium agreement or agreement among the parties were
taken into consideration.
JUSTICE PANGANIBAN:
You took the word of the BAC?
COMMISSIONER TUASON:
Of course, your Honor, because they are the ones mandated at
that particular time, Your Honor, I did not personally.
JUSTICE PANGANIBAN:
All right, did you also look at the joint and several undertaking
of the consortium members?
COMMISSIONER TUASON:
The condition under the request for proposal Your Honor is that
manufacturers, suppliers and/or distributors forming themselves
into a joint venture, a group of two or more manufacturers,
suppliers, and or distributors that intend to be jointly and
severally responsible or liable for a particular contract provided
that Filipino ownership is 60%.
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248
248 SUPREME COURT REPORTS ANNOTATED
Information Technology Foundation of the Philippines
vs. Commission on Elections
The consortium
agreements are sufficient
The majority opinion, nonetheless, insinuates that it is not sufficient
that a joint venture be formed, but that the members of the
_______________
26 TSN, October 7, 2003, pp. 144-146.
27 TSN, October 7, 2003, pp. 264-278.
249
joint venture all bind themselves jointly and severally liable for the
performance of the Contract. It asserts that there was no joint
venture agreement, much less a joint and several undertaking,
among the members of the alleged consortium. Thus, the BAC
should not have found MPC eligible to bid.
I cannot subscribe to this position. The RFP specifically defines a
joint venture as a group of two (2) or more manufacturers, suppliers
and/or distributors that intend
28
to be jointly and severally responsible
or liable for the contract. Nowhere in the RFP is it required that the
members of the joint venture execute a single written agreement to
prove the existence of a joint venture. Indeed, the intention to be
jointly and severally liable may be evidenced not only by a single
joint venture agreement but by supplementary documents executed
by the parties signifying such intention.
As the respondents pointed out, separate agreements were
entered into by and between MPEI on the one hand and We Solv, SK
C&C, Election.Com, and ePLDT on the other. The Memorandum of
29
Agreement between MPEI and WeSolv and MPEI and SK C&C set
forth the joint and several undertakings among the parties. On the
30
other hand, the Teaming Agreements between MPEI and
Election.Com and MPEI and ePLDT clarified their respective roles
with regard to the Project, with MPEI being the “independent
contractor” and Election.Com and ePLDT the “subcontractors.”
The ponencia mistakenly attributes to the respondents the
argument that the phrase “particular contract” in the RFP should be
taken to mean that all the members of the joint venture need not be
solidarity liable for the entire project, it being sufficient that the lead
company and the member in charge of a “particular contract” or
aspect of the joint venture agree to be solidarily liable. Nowhere in
any of the respondents’ pleadings was this argument ever raised. If it
was, inestimable gain goes to the respondents because this
contention is ultimately logical and coherent.
The RFP itself lays down the organizational structure of the joint
venture and the liability dynamics of the members thereof. It reads:
_______________
28 Rollo, p. 71.
29Id.,at pp. 2348-2351 and pp. 2352-2354, respectively.
30Id.,at pp. 2355-2363 and pp. 2364-2373, respectively.
250
All Contract Documents shall form part of the Contract even if they or
any one of them is (sic) not referred to or mentioned in the Contract as
forming a part thereof. Each of the Contract Documents shall be mutually
complementary and explanatory of each other such that what is noted in one
although not shown in the other shall be considered contained in all, and
what is required by any one shall be as binding as if required by all, unless
one item is a correction of the other.
The intent of the Contract Documents is the proper, satisfactory and
timely execution and completion of the Project, in accordance with the
Contract Documents. Consequently, all items necessary for the proper and
timely execution and completion of the Project shall be deemed included in
33
the Contract.” [Emphasis supplied]
_______________
31Id.,at p. 71.
32Id.,at pp. 2199-2217.
33Id.,at pp. 2200.
251
COMELEC is protected
under the contract and the
Civil Code
But the Court dismisses the respondents’ use of the Contract as basis
for the enforcement of the claims of COMELEC against the
consortium on the premise that 36
the Contract is between the
COMELEC and MPEI, not MPC. That is so because MPEI, as lead
member of the consortium, is empowered by WeSolv and SK
C&C,which along with MPEI itself, represent 90% of the total
_______________
34Id., at p. 2212.
35Id., at p. 72.
36 Decision, p. 44.
252
“Respondent COMELEC is not and will not be precluded from asserting the
solidary liability of all consortium members who represented themselves to
be such. In the absence of a joint venture agreement, and in cadence with
[the] rule on partnership that a partner is considered as the agent of his co-
partners and of the partnership in respect of all partnership transactions
(Article 1803, Civil Code), private respondent’s members acted as agents of
each other and are as such solidarily bound by their own and the other
members’ undertaking. Further, the rule is that when a person, by words
spoken or written or by conduct, represents himself, or consents to another
representing him to anyone, as a partner in an existing partnership or with
one or more persons not actual partners, he is liable to any such persons to
whom such representation has been made, who has, on the faith of such
representation, given credit to the actual or apparent partnership, and if [he]
has made such representation or consented to its being made in a public
manner he is liable to such person, whether the representation has or has not
been made or communicated to such person so giving credit by or with the
knowledge of the apparent partner making the representation or consenting
to its being made. When a partnership liability results, he is liable as though
he was an actual member of the partnership. (Article 1825, Civil Code)”
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253
“Art. 1822. Where, by any wrongful act or omission of any partner acting in
the ordinary course of the business of the partnership or with the authority
of his co-partners, loss or injury is caused to any person, not being a partner
in the partnership, or any penalty is incurred, the partnership is liable
therefore to the same extent as the partner so acting or omitting to act.
Art. 1823. The partnership is bound to make good the loss:
(1) where one partner acting within the scope of his apparent authority
receives money or property of a third person and misapplies it; and
(2) Where the partnership in the course of its business receives money
or property of a third person and the money or property so received
is misapplied by any partner while it is in the custody of the
partnership.
Art. 1824. All partners are liable solidarily with the partnership for
everything chargeable to the partnership under Articles 1822 and 1823.”
(Emphasis supplied)
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254
255
(1) audited financial statements of the Bidder’s firm for the last three
(3) calendar years, stamped “RECEIVED” by the appropriate
government agency, to show its capacity to finance the manufacture
and supply of Goods called for and a statement or record of volume
of sales;
(2) Balance Sheet;
(3) Income Statement; and
(4) Statement of Cash Flow.
The bidders shall be evaluated according to their liquidity, solvency and
stability. The company’s current assets should be more than its current
liabilities. Its long term assets should be more than its long term liabilities.
The BAC may disqualify companies that are having financial difficulty and
thus, making its long term prospects dim. This will eventually affect their
ability to deliver and meet the requirements for the election automated
machines.”
On the other hand, the Bid Envelope shall contain the technical
41
specifications and the bid price.
According to the documents it submitted to substantiate
eligibility, MPEI was incorporated only on February 27, 2003. Thus,
it was not able to submit the required financial documents, i.e.,
Audited Financial Statements for the last three (3) years, Balance
Sheet, Income Statement and Statement of Cash Flow.
However, the failure of MPEI to submit its financial documents
due to its newly-acquired corporate personality should not by itself
disqualify MPC. It should be pointed out that the purpose of the RFP
in requiring the submission of the financial documents of the bidder
is to determine the financial soundness of the latter and its capacity
to perform the Contract if its bid is accepted. This purpose may well
be attained by examining the financial documents sub-
_______________
256
mitted by the other members of the joint venture. In this regard, the
respondents emphasized that SK C&C, ePLDT and WeSolv
submitted the required financial documents. Moreover, MPEI has a
paid in capital of P300,000,000.00, an amount which is substantially
over and above the 4210% equity based on the total project cost
required by the RFP. Thus, I cannot subscribe to the majority’s
myopic interpretation of the RFP that each of the members of MPC
must comply with all the requirements thereunder.
43
InKilosbayan v. Guingona, we defined a joint venture as “an
association of persons or companies jointly undertaking some
commercial enterprise; generally all contribute assets and share
risks. It requires a community of interest in the performance of the
subject matter, a right to direct and govern the policy in connection
therewith, and duty, which may be altered by agreement to share
44
both in profit and losses.”
The collective nature of the undertaking of the members of MPC,
their contribution of assets and sharing of risks, and the community
of their interest in the performance of the Contract all lead to the
reasonable conclusion that their collective qualifications should be
the basis for evaluating their eligibility. Practical wisdom dictates
this to be so because the sheer enormity of the Project renders it
improbable to expect any single entity to be able to comply with all
the eligibility requirements and undertake the Project by itself. As
emphasized by the OSG, the RFP precisely allowed bids from
manufacturers, suppliers and/or distributors forming themselves into
a joint venture in recognition of the virtual impossibility that a single
entity would be able to respond to the Invitation to Bid.
Further, as pointed out by the COMELEC, the Implementing
45
Rules and Regulations
46
(“IRR”) of R.A. No. 6957, as amended by
R.A. No. 7718, is instructive since proponents of Build-Operate-
_______________
42Id., at p. 72.
43 G.R. No. 113375, May 5, 1994, 232 SCRA 110.
44Id., at p. 144.
45 “An Act Authorizing The Financing, Construction, Operation And Maintenance
Of Infrastructure Projects By The Private Sector And For Other Purposes.” It is
otherwise known as the BOT Law.
46 “An Act Amending Certain Sections Of Republic Act No. 6957, Entitled “An
Act Authorizing The Financing, Construction, Operation And
257
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258
259
“The BAC further noted that both Mega-Pacific and TIM obtained some
‘failed marks’ in the technical evaluation. In general, the ‘failed marks’ of
Total Information Management as enumerated above affect the counting
machine itself that are material in nature, constituting noncompliance to
(sic)the RFP. On the other hand, the ‘failed marks’ of Mega-Pacific are mere
formalities on certain documentary requirements, which the BAC may
waive, as clearly indicated in the Invitation to Bid.
In the DOST test, TIM obtained 12 failed marks mostly attributed to the
counting machine itself as stated earlier. These are requirements of the RFP
and therefore the BAC cannot disregard the same. Mega-Pacific in 8 items
however these are mostly on the software, which can be corrected by
53
reprogramming the software and therefore can be readily corrected.”
[Emphasis supplied]
54
Parenthetically, in his sponsorship remarks on R.A. No. 8436, Rep.
Abueg underscored the salient features which must be found in the
AES. He said:
_______________
260
_______________
55Id., at pp. 10-11.
261
262
It is well to note that all the 1,991 ACMs supplied by MPC under
the Contract were found to have satisfied the mandatory
requirements of the AES,
56
to wit: (a) use of appropriate ballots, (b)
stand-alone machine which can count votes and an automated
system which can consolidate the results immediately, (c) with
provisions for audit trails, (d) minimum human intervention and (e)
adequate safeguard/security measures. As stated in the BAC Report,
the failed marks of MPC were mere formalities in certain
documentary requirements. Further, these failed marks were
attributable to the software which can be readily corrected by
reprogramming. The failed marks, therefore, were not material in 57
nature and were, at worst, mere optional features of the System.
The RFP clearly authorizes the BAC to waive any informality,
nonconformity or irregularity in a bid which does not constitute a
material deviation, provided that such waiver
58
does not prejudice or
affect the relative ranking of any bidder.
As regards the issue relating to the accuracy rating of 99.9995%
mandated for the counting machine by the RFP, right off I observe
that the petitioners made pronounced changes in their position at
every turn. In the Petition, they simply alleged that the COMELEC
had erred when it “failed to declare a failed bidding and to conduct a
re-bidding of the project despite the failure of the bidders to pass the
technical59tests,” including the test on the accuracy rating of the
machine. At the oral arguments, however, they claimed that the
60
COMELEC had “waived the accuracy requirement.” Finally, in
their Memorandum they accused the poll body of having “changed
61
the accuracy criteria from 99.9995 percent to only 99.995 percent.”
However, there is no competent evidence on record that the
COMELEC had waived or changed the prescribed accuracy rating.
_______________
56 During the oral arguments, Com. Borra asserted that the ACMs are stand alone
machines in that they do not have inputs or outputs that enable them to be networked.
TSN, October 7, 2003, pp. 176-179.
57Supra,note 28 at p. 2435.
58Id., at p. 81.
59Id., at pp. 31-33.
60 TSN, October 7, 2003, p. 26.
61Supra, note 28 at p. 2396.
263
_______________
264
_______________
68 The letter dated December 15, 2003 addressed to Com. Borra from Rolando T.
Viloria, Executive Director and Chairman of the DOST-Technical Evaluation
Committee states that the DOST tested a total of 1,991 ACMs. Of these, 18 units
failed the test. Out of the 18 units, only one (1) unit failed the retest.
265
Epilogue
In view of the foregoing, the majority’s position that the COMELEC
should have conducted a re-bidding of the Project is plainly
injudicious. The procedure is warranted only if no bid is received or
qualified as the lowest calculated and responsive bid. It is 69
not amiss
to mention again that there were more than 50 bidders for the
Project, out of which MPC was qualified as the lowest calculated
and responsive bid. A re-bidding of the Project would not serve any
further purpose because the bidding had actually drawn the
participation of as many bidders as realistically possible and that
considering the enormity of the Project, a new bidding would not
reasonably attract new bidders. There is therefore no basis to
conclude that there was a failure
70
of bidding, and the contract should
be re-advertised and re-bid. Remarkably besides, none of the losing
bidders questioned the process undertaken by the BAC. The logical
conclusion is that the losing bidders have conceded MPC’s eligibility
and qualifications and deferred to the decision of the COMELEC to
award the Contract to MPC.
It is also to the COMELEC’s credit that its award of the Contract
to MPC has resulted in substantial savings for the government. The
paramount objective of public bidding is to ensure that 71
the
government obtains the lowest and best price in the market. This
objective was undoubtedly attained by the award of the Contract to
MPC. As emphasized in the respondents’ pleadings and in
72
72
newspaper advertisements, MPC’s bid covering nationwide
automation was P49,000,000.00 lower than that submitted by TIMC,
_______________
69 The Memorandum of the OSG (Rollo, p. 2428) states that there were more than
50 prospective bidders for the Project.
70Supra,note 28 at p. 82.
71 Cobacha and Lucenario, Law on Public Bidding and Government Contracts,
1960, p. 7.
72 Philippine Daily Inquirer, November 20, 2003.
266
_______________
267
Like the Senate to which the Court graciously deferred in the cited
ruling, I respectfully submit, the COMELEC deserves the same
degree of deferential treatment given its status as a constitutional
body. But quite lamentably, the Decision would bring disrepute to
and even cause havoc on the COMELEC as an institution. It will
never be the same.
I therefore vote to dismiss the instant Petition.
Petition granted, Comelec Resolution No. 6074 null and void.
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268
——o0o——
269