The Supreme Court (SC) did not issue Friday a restraining order that could have stopped the Commission on Elections (Comelec) from signing the P7.2-billion poll automation contract with Total Information Management/Smartmatic Corporation, a Filipino-Dutch joint venture recently formed for the project.

As of 4 p.m. Friday, the justice to whom the petition was assigned after a raffle did not submit any recommendation for a temporary restrain-Contract signing allowed ing order (TRO) that was pleaded
the other day by a group of lawyers and private individuals who wanted a stop to the signing of the contract for alleged violations of Republic Act No. 9369, the poll automation law.

On Tuesday next week, the SC – sitting as a full court – will deliberate on the petition.

If the SC finds valid grounds to stop the project, it may issue a status quo ante order that would bar temporarily the implementation of the contract until the petition is resolved on its merits with finality. The status quo, under the rules, is the situation before a controversy and in this case, it is the situation before the signing of the contract.

In the case of the Mega Pacific Consortium that bagged the first automation contact with the Comelec, the SC nullified the contract even if payments had been made and hardware for the project had been delivered to the poll body.

In the petition led by University of the Philippines law professor Harry Roque, the SC was told the Comelec failed to conduct any pilot testing of the precinct count optical scan (PCOS) machines by TIM/Smartmatic which is required under RA 9369.

The group said that Section 5 of RA 9369 provides that for the regular and national election, the automated election system should be used in at least two highly urbanized cities and two provinces each in Luzon, the Visayas, and Mindanao which was not done by the Comelec.

It also said that the Comelec failed to adhere to Section 12 of RA 9369 which provides that with respect to the May 10, 2010 election and succeeding electoral exercises, the machines procured for poll automation must have demonstrated capability and have been successfully used in a prior electoral exercises here or board.

Also signed by lawyers Joel Butuyan, Romel Bagars, Allan Jones Lardizabal and Gilbert Andres, and taxpayers Immaculada Garcia, Erlinda Mercado, Francisco Alcuaz, Azucena Maceda and Alvin Peters, the petition stated that TIM/Smartmatic submitted to the Comelec’s SBAC the certificate of acceptance addressed to a third party, Dominion Voting Systems -- an election provider in Canada – to the effect that the said election machines have been successfully used in a prior electoral exercise.

“This patent misrepresentation by respondent Smartmatic-TIM is evidence of bad faith and intent to defraud the government,” the petition stated.

Named respondents in the petition were the Comelec, Smartmatic and TIM, special bids and awards committee (SBAC) chairman Ferdinand Rafanan, and Budget Secretary Rolando Andaya.

At the same time, the petition told the SC that the PCOS machines offered to the Comelec failed to comply with the minimum system capabilities as described under Section 6 of RA 9369 such as those pertaining to the accuracy in recording and reading of votes as well as in the tabulation, consolidation, canvassing, electronic transmission, and storage results.

It pointed out that while the SBAC has an accuracy rating of at least 99.995 per cent or an error of 0.005 per cent, Smartmatic in its website admitted that for optical scanners a two per cent to10 per cent failure rate has been documented when scanning paper ballots in reading voters’ choices in a tabulating system.