"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..."The Ombudsman's panel says it "cannot find an iota of evidence" to find probable cause for prosecution. Yet its own Report actually contains testimonies and statements that even taken superficially, point to a convincing PATTERN of partiality, bad faith AND negligence in the actions of the Comelec.
These ELEMENTS of the crime of graft and corruption are not made clear, manifest, or self-evident by the Report, because, as a piece of English Composition, it is dedicated to a direct refutation of the conclusions in the January 13, 2004 Supreme Court Decision ITF vs. Comelec.
However, the facts, testimonies, statements and other objective data utilized by the Ombudsman to come to certain illogical conclusions, can nonetheless be useful to a further investigation and prosecution of the entire disastrous 2.5 billion peso automation fiasco.
For example, the finding of "inexplicable haste" when Comelec en banc awarded the contract to MPC on April 15, 2003, is corroborated by the following statements in the Supplemental Resolution giving a chronology of events leading up to, but not mentioning that event!
Verification Tests for Mega PacificWhat of course is missing in the Ombudsman's abruptly cut short chronology is that:
On 8 April 2003, DOST informed COMELEC that because the results of the automated counting in some precincts did not tally with the manual count there was a need to undertake a retest.
On 11 April 2003, COMELEC advised DOST to reconfirm the ACM count by conducting the retest/recounting of every precinct that contain ballots with discrepancies. This is known as the verification test.
On 14 April 2003, DOST submitted to COMELEC its report on the result of the technical evaluation as well as the verification tests of both the ACMs of Mega Pacific and TIMC.
The report shows that the failures on six (6) items, were not defects attributable to the machines. DOST after analyzing the causes of non-conforming accuracy rating using statistical analysis and investigation on the so called assignable causes of variation, concluded that the discrepancy was due to improper shading of ballots resulting to the failed marks obtained by the machines of Mega Pacific. More, in the same report of DOST, it is categorically stated that the results of the verification tests on the machines of Mega Pacific in fact yielded a one hundred percent (100%) accuracy rating for all three environment conditions.
On 15 April 2003, the Comelec en banc, awarded the assailed Contract to Mega Pacific Consortium, even without a WRITTEN report from its Bids and Awards Committee, who only submitted such Report on 21 April 2003, thus preventing, the filing of a Section 19 protest, as noted by the High Court in ITF vs. Comelec.
But there is new information contained in the Ombudsman's Chronology above. There appears to be a manifest and self-evident pattern of PARTIALITY, BAD FAITH and NEGLIGENCE in the actions of the Comelec relative to that seminal event of Contract Award, as revealed in the Chronology.
What is common to all three criminal elements, as enunciated by the Court in Quibal vs. Sandiganbayan, is the element of a CLEAR BREACH OF DUTY on the part of public officials. In other words, when it can be established that said public officials did not do something that was CLEARLY their legal and even moral DUTY to do, then they evince partiality, bad faith and negligence.
WAS THERE A CLEAR BREACH OF DUTY on the part of Comelec in the events leading up to April 15, 2003 award of Contract to MPC? I think a close reading of the Ombudsman's report, will show a PATTERN OF ACTIONS each of which were illogical, unreasonable, illegal, inchoate, or plainly in contravention of what any upright government official would have done.
Consider what the Ombudsman herself reports happened:
One week before they awarded a multibillion peso Contract to a dubiously formed Consortium, the Comelec had received word that its leading bidder had miserably failed the tests applied by DOST to meet Comelec's own announced requirements. (April 8).
On April 8, it was the CLEAR DUTY of the Comelec to reject MPC's bid because it had failed the qualification test. This was the second instance of such bad faith on the part of Comelec. (The first being that prestidigitation on the accuracy rating of 99.9995% and its downgrade AFTER the eligibility phase of the bidding had eliminated all but MPC andTIM.) This smells of something called EVIDENT BAD FAITH.
The Comelec instead orders a VERIFICATION TEST by having DOST re-run the tests on the 7 items MPC system failed. The MPC System AGAIN fails 6 of the 7 tests and it is not clear how it suddenly PASSED 100% the tests it had previously failed. (This is like a teacher having her FAVORITE PET retake an exam, but only the questions he got wrong!) Hmm...this looks like MANIFEST PARTIALITY to me. At this point it was the Comelec's CLEAR DUTY to declare a failure of their own bidding process and to restart it.
On April 14, 2003, the Comelec appears to make DOST fudge its own tests and reports, because with a wave of its hand the Comelec proceeded to ignore all the FACTS about their two bids and to EXCUSE the failure of the bidders at test on a number of flimsy and obvious inanities about software and hardware and test conditions that are laughable for their amateurish and patent falsity.
On April 15, 2003, against their manifest and self-evident DUTY to reject both bids and restart the bidding process, the Comelec nonetheless, with gross, inexcusable haste, did indeed, negligently award the Contract to MPC.
I find the testimonies of Sec. Estrella Alabastro of the Dept. of Science and Technology and Engineer Ronald Viloria to be a revealing narrative of how the Comelec used the DOST as an "independent testing agency" as required by the Law, but ignored its own enunciated rules and requirements when that agency reported the failure of ALL bidders to fulfill the key requirements Comelec itself had imposed.
Altogether the Ombudsman's Report establishes probable cause to prosecute Comelec because there is a clear pattern of the elements of graft and corruption: evident bad faith, manifest partiality and gross inexcusable negligence.
Oh...and the fact that the 2.5 billion pesos spent on "Automation" by Comelec so far has produced nothing manifestly useful or evidently good. In fact, it has produced nothing at all but the complete and utter distrust of the people in Comelec.