Professional Documents
Culture Documents
*
G.R. No. 159139. January 13, 2004.
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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.
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146
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PANGANIBAN, J.:
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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).
On6 December 22, 1997, Congress enacted Republic Act
8436 authorizing Comelec to use an automated election
system (AES) for
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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.
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the automated election system for national positions in the May 11, 1998
elections, the elections for both national and local positions shall be done
manually except in the Autonomous Region in Muslim Mindanao (ARMM)
where the automated election system shall be used for all positions.”
8 Loong v. Commission on Elections, 365 Phil. 386; 305 SCRA 832, April
14, 1999; see also Panganiban, Leadership by Example, 1999 ed., pp. 201-
249.
151
152
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153
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x x x x x x x x x
“29. Postqualification
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The Issues
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157
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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.
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161
26
tenetur ad impossible,27
to borrow private respondents’
favorite Latin excuse.
April 21 were a mere six (6) days. Could Comelec not have
waited out six more days for the written report of the BAC,
instead of rushing pell-mell into the arms of MPC?
Certainly, respondents never cared to explain the nature of
the Commission’s dire need to act immediately without
awaiting the formal, written BAC Report.
In short, the Court finds it difficult to reconcile the
uncommon dispatch with which Comelec acted to approve
the multi-billion-
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162
administrative
29
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:
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163
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164
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165
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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
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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
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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 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:
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172
Deficiencies Have
Not Been “Cured”
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173
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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
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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
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,
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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
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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.
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46 232 SCRA 110, 144, May 5, 1994, per Davide, Jr., J.(now C.J.).
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47
TEST RESULTS MATRIX
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47 Culled from table 6, DOST Report; Rollo, Vol. II, pp. 1059-1072.
183
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
reports
Audit Trail √ √
Note: This
particular
requirement
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needs
further
verification
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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.
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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
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Comelec’s Latest
“Assurances” Are
Unpersuasive
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195
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196
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"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,
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198
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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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Epilogue
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CONCURRING OPINION
YNARES-SANTIAGO, J.:
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206
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207
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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
17
intervention, as when public
interest is 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,
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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
particular
18
contract, provided Filipino ownership thereof shall be
60%. (italics supplied)
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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
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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.
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27Id., p. 2348.
28Id.
212
WeSolv shall be jointly and severally liable with Mega Pacific only
for the particular
30
products and/or services supplied by the former
for the Project.
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29Id.
30Id., p. 2349.
31Id., p. 2352.
32Id.
33Id., p. 2353.
213
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—and—
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215
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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
SANDOVAL-GUTTERREZ, J.:
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219
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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 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-
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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.
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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 would15 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 legal16 obstacle. In Commission on Elections vs.
Quijano-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
17
and proceed with 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
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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
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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.
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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.
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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.
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28 64 Am Jur 2d § 64.
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SEPARATE OPINION
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SEPARATE OPINION
VITUG, J.:
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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
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235
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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 plain,7 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 and8
resolve
only the specific questions raised by the parties. The Court
is not a9 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 concerned with10 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 the sanctity11 of the
ballot. This duty lies primarily with the COMELEC.
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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.
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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. 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
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. . . (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
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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.
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March 7, 2003
Intramuros, Manila
Sir:
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EPLDT
SK C &
C
(Sgd.) WILLY U. YU
President
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.”
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245
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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.
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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
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248
The consortium
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28 Rollo, p. 71.
29Id.,at pp. 2348-2351 and pp. 2352-2354, respectively.
30Id.,at pp. 2355-2363 and pp. 2364-2373, respectively.
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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 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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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
“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 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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260
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does not
58
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 technical tests,”
59
including the test on the accuracy
rating of the machine. At the oral arguments, however,
they claimed that
60
the COMELEC had “waived the accuracy
requirement.” Finally, in their Memorandum they accused
the poll body of having “changed the accuracy
61
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.
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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. 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
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264
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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
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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 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 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 of bidding,
70
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 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, MPC’s 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.
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268
——o0o——
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