Professional Documents
Culture Documents
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* 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
147
148
PANGANIBAN, J.:
_______________
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 rebidding 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).
On6 December 22, 1997, Congress enacted Republic Act
8436 authorizing Comelec to use an automated election
system (AES) for
_______________
4 Rollo, Vol. I, pp. 348. 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 pilottest
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
150 SUPREME COURT REPORTS ANNOTATED
Information Technology Foundation of the Philippines
vs. Commission on Elections
_______________
151
152
_______________
153
_______________
154
155
x x x x x x x x x
29. Postqualification
_______________
156
The Issues
In their Memorandum, petitioners raise the following
issues for our consideration:
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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
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159
161
_______________
162
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163
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164
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165
TwoEnvelope,
TwoStage 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 twoenvelope, twostage
system. A bidders 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
170 SUPREME COURT REPORTS ANNOTATED
Information Technology Foundation of the Philippines
vs. Commission on Elections
_______________
40 On pp. 4243 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
membersas earlier claimed by Commissioner Tuason in
open courtit turns out that what was actually executed 42
were four (4) separate and distinct bilateral 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:
_______________
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:
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
Enforcement of Liabilities
Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce
the liability of the consortium members under the Civil
Code provisions on partnership, reasoning that MPEI et
al.represented themselves as partners and members of MPC
for purposes of bidding for the Project. They are, therefore,
liable to the Comelec to the extent that the latter relied upon
such representation. Their liability as partners is solidary
with respect to everything chargeable to the partnership
under certain conditions.
The Court has two points to make with respect to this
argument. First, it must be recalled that SK C&C, WeSolv,
Election.com and ePLDT never represented themselves as
partners and members of MPC, whether for purposes of
bidding or for something else. It was MPEI alone that
represented them to be members of a consortium it
supposedly headed. Thus, its acts may not necessarily be
held against the other members.
176
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
180
181
182
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47 Culled from table 6, DOST Report; Rollo, Vol. II, pp. 10591072.
183
requirement
needs
further
verification
8. Data stored in external media
is encrypted?
Note: This
particular
requirement
needs
further
verification
9. Physical key or similar device
allows, limits, or restricts
operation of the machine?
10. CPU speed is at least
400mHz?
Note: This
particular
requirement
needs
further
verification
11. Port to allow use of dot
matrix printers?
12. Generates printouts of the
election returns in a format
specified by the COMELEC?
Generates printouts In format
specified by COMELEC
13. Prints election returns
without any loss of data during
generation of such report?
14. Generates an audit trail of
the counting machine, both hard
copy and soft copy?
Hard copy
Soft copy Note: This
particular
requirement
needs
further
verification
15. Does the City/Municipal
Canvassing System consolidate
results from all precincts within Note: This
it using the encrypted soft copy particular
of the data generated by the requirement
counting machine and stored on needsfurther
the
184
185
needs
further
verification
22. Can the result of the
city/municipal consolidation be
Note: This
stored in a data storage device? particular
requirement
needs
further
verification
23. Does the system consolidate
results from all precincts in the
Note: This
provincial/district/national using
particular
the data storage device from
requirement
different levels of consolidation?
needs
further
verification
24. Is the system 100% accurate?
Note: This
particular
requirement
needs
further
verification
25. Is the Program able to detect
previously download precinct
Note: This
results and prevent these from
particular
being inputted again into the
requirement
System?
needs
further
verification
26. The System is able to print
the specified reports and the
audit trail without any loss of
data during generation of the
abovementioned reports?
Prints specified reports
Audit Trail
Note: This
particular
requirement
needs
further
verification
27. Can the results of the
provincial/district/national
consolida Note: This
186
186 SUPREME COURT REPORTS ANNOTATED
Information Technology Foundation of the Philippines
vs. Commission on Elections
187
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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 818, 2003. Among those tested
were some machines that had failed previous tests, but had
undergone adjustments and thus passed retesting.
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 reevaluated and reappraised and
thereafter given the passing mark. Apart from that fact,
the remedial efforts of respondents were, not surprisingly,
apparently focused again on the machinesthe hardware.
Nothing was said or done about the softwarethe
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 retested, 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,
Thats 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
Comelecs 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 50
with the
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
_______________
195
_______________
196
15 December 2003
HON. RESURRECCION Z. BORRA
CommissionerinCharge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
"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,
_______________
198
_______________
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
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202
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203
Epilogue
204
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205
VOL. 419, JANUARY 13, 2004 205
Information Technology Foundation of the Philippines
vs. Commission on Elections
CONCURRING OPINION
YNARESSANTIAGO, J.:
_______________
1 G.R. No. 157013, 10 July 2003, 405 SCRA 614.
2 See Loong v. Commission on Elections, 365 Phil. 386; 305 SCRA 832
(1999).
206
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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, 357362 (1988).
8 Eastern Shipping Lines v. Philippine Overseas Employment Agency,
G.R. No. L76633, 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. L29171, 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. L38962, 15 September 1986, 144 SCRA 116.
208
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, 574575 (1997); and Tan Jr. v.
Sandiganbayan, 292 SCRA 452, 457458 (1998).
209
_______________
18 RFP, at p. 12.
19 Sevilla v. Court of Appeals, G.R. Nos. L4118283, 15 April 1988, 160 SCRA
171.
20 G.R. No. 75875, 15 December 1989, 180 SCRA 130.
210
211
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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 particular products and/or services supplied by the former
30
for the Project.
_______________
29Id.
30Id., p. 2349.
31Id., p. 2352.
32Id.
33Id., p. 2353.
213
214
and
_______________
215
_______________
_______________
47 Rollo, p. 1408.
48Id., pp. 1870; 1954; 2052.
49 Lopez v. Piatco, G.R. No. 155661, 5 May 2003, 402 SCRA 612.
217
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218
CONCURRING OPINION
SANDOVALGUTTERREZ, J.:
_______________
219
On December
3
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 5of the
ACM with an estimated 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 be6 jointly and severally responsible or liable
for the contract.
The next day, February 18, 2003, the Bids and Awards
Committee (BAC) convened a prebid 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
_______________
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 498499 (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
_______________
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 nonrefundable 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
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225
VOL. 419, JANUARY 13, 2004 225
Information Technology Foundation of the Philippines
vs. Commission on Elections
_______________
226
_______________
21 The MOA between MPEI and SK C&C was entered only on March 9,
2003.
22 Rollo, Vol. IV at pp. 23552363.
23Id.,at pp. 23642371.
24 JG Summit Holdings, Inc. vs. Court of Appeals, supra.
25 Villanueva, Philippine Corporate Law, 2002 at p. 917.
227
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228
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28 64 Am Jur 2d 64.
229
230
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232
SEPARATE OPINION
SEPARATE OPINION
VITUG, J.:
_______________
234
DISSENTING OPINION
TINGA, J.:
Prologue
Once again, the Court availing of its extraordinary powers
or socalled 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
_______________
235
_______________
236
_______________
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
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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. Noninterruption 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]
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239
. . . (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 as
_______________
240
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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
March 7, 2003
BIDS AND AWARDS COMMITTEE
Commission On Election
Intramuros, Manila
Sir:
242
(Sgd.) WILLY U. YU
President
MEGA PACIFIC eSOLUTIONS, INC.
(Lead Company/Proponent)
For: MEGA PACIFIC CONSORTIUM
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.
_______________
245
_______________
24 Resolution, p. 3.
246
JUSTICE QUISUMBING:
May I know if somebody from the Commission on
Elections who knows the elements of the socalled
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 incharge of
the, I am not Incharge 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 incharge 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 socalled
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 Commissionerin
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 25
was 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%.
_______________
248
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
_______________
249
_______________
28 Rollo, p. 71.
29Id.,at pp. 23482351 and pp. 23522354, respectively.
30Id.,at pp. 23552363 and pp. 23642373, respectively.
250
_______________
31Id.,at p. 71.
32Id.,at pp. 21992217.
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 the
36
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
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34Id., at p. 2212.
35Id., at p. 72.
36 Decision, p. 44.
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(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.
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254
255
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256
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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
258 SUPREME COURT REPORTS ANNOTATED
Information Technology Foundation of the Philippines
vs. Commission on Elections
The BAC further noted that both MegaPacific 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 MegaPacific 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. MegaPacific in 8 items however these are
mostly on the software, which can be corrected by reprogramming
53
the software and therefore can be readily corrected. [Emphasis
supplied]
Parenthetically,
54
in his sponsorship remarks on R.A. No.
8436, Rep. Abueg underscored the salient features which
must be found in the AES. He said:
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261
262
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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. 176179.
57Supra,note 28 at p. 2435.
58Id., at p. 81.
59Id., at pp. 3133.
60 TSN, October 7, 2003, p. 26.
61Supra, note 28 at p. 2396.
263
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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 majoritys position that the
COMELEC should have conducted a rebidding 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 not amiss to69 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 rebidding 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 of bidding,
70
and the contract should be
readvertised and rebid. Remarkably besides, none of the
losing bidders questioned the process undertaken by the
BAC. The logical conclusion is that the losing bidders have
conceded MPCs eligibility and qualifications and deferred
to the decision of the COMELEC to award the Contract to
MPC.
It is also to the COMELECs 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 the government
71
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
72
pleadings and in
newspaper advertisements, MPCs bid covering nationwide
automation was P49,000,000.00 lower than that submitted
by TIMC,
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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
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268
o0o
269