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DISSENTING OPINION

TINGA, J.:

More than a month has passed since the Court's monumental Decision in this case. The Commission on Elections (COMELEC) has not quite recovered from the rush of public criticism that followed the Court's condemnation of its Contract with Mega Pacific eSolutions, Inc. (MPEI) and Mega Pacific Consortium (MPC). The indignant tone of its Motion for Reconsideration1 is, therefore, quite understandable.

Before I proceed, I think it necessary to reiterate that the main issue in this case is whether the COMELEC committed grave abuse of discretion when it awarded the Contract to MPC. I maintain that it did not.

Based on the records, the COMELEC was furnished with sufficient information to enable it to judiciously gauge MPC's existence, identity and eligibility. There is no clear proof to indicate otherwise except that which exists in the fertile imaginings of the majority. Moreover, the objections to the technical features of the automated counting machines (ACMs) have been rendered unfounded, if not altogether pointless, by the official certifications issued by the Department of Science and Technology (DOST). It cannot be fairly concluded, therefore, that the COMELEC acted with "inexplicable haste" in the conduct of the public bidding and the subsequent award of the Contract to MPC.

As articulated in the ponencia itself, there is grave abuse of discretion when an act is done contrary to the Constitution, law or jurisprudence or when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. The COMELEC did not commit such an act and I was quick to point out that the Decision miserably failed to cite a single Court decision which the Commission has defied. Hence, the Court cannot be called to exercise, and should not have exercised, its extraordinary certiorari jurisdiction in this case.

As rightfully expected, the COMELEC in its Motion for Reconsideration ardently declares that it did not commit grave abuse of discretion when it awarded the Contract to MFC on the strength of the recommendation of its Bids and Awards Committee (BAC). Citing Republic Act No. 9184, the COMELEC argues that its BAC has the duty to, among others, determine the eligibility of bidders and conduct the evaluation of bids. For the COMELEC to arrogate unto itself the power to determine the bidders' eligibility and qualifications, as the Court seemed to suggest, would be a clear contravention of the law.

The Commission disagrees with the Court's finding that the cover letter of March 7, 2003 expressing the consortium's intent to bid for Phase II of the Election Modernization Program (Project) is purely self-serving and uncorroborated. This letter, taken together with the bid documents, conclusively established the existence of the consortium. Besides, none of the consortium members ever disputed or repudiated their participation in the bidding or the authority given to MPEI to represent them thereat.

The COMELEC emphasizes that the award to MPC was made under terms most advantageous to the government not only as to cost but also as to the technical capability of the ACMs.

As regards the Court's misgivings about the enforceability of the Memoranda of Agreement separately entered into by the COMELEC with the principal consortium members, the Commission asserts that the consortium has already fully complied with its undertakings. Thus, the issue of contract enforceability is already moot and academic.

The COMELEC also disputes the Court's findings that the ACMs failed the technical tests conducted by the DOST or otherwise failed to comply with the technical requirements under the Request for Proposal (RFP). Referring to a letter from its Technical Advisers for the Project, the Commission clarifies that the mandatory requirements under Republic Act No. 8436 have all been complied with. This will be discussed in detail later.

Furthermore, the COMELEC takes exception to what it calls the Court's "severe, harsh and hasty" pronouncements that it committed grave abuse of discretion with nary a presumption of regularity or good faith in the performance of its functions.

The Omnibus Motion 2 filed by MPEI/MPC raises substantially the same arguments.

These motions magnify the baselessness of the inferences and conclusions drawn by the majority in the Decision dated January 13, 2004. The most potent testament is the letter of January 22, 2004 3 from Information Technology (IT) professionals4 in the private sector who were involved in various capacities as Technical Advisers for the Project.

The letter comments on the technical deficiencies in the ACMs and the software programs so strenuously emphasized in the ponencia and answers most of the conceptual queries therein. It is notable in its assertion that "the software development process (undertaken by the COMELEC) was aligned to internationally-accepted (ISO/IEC 12207) software life cycle processes." 5 It is indeed unfortunate that the issues related to software development were not brought to light before the Court promulgated its Decision, largely owing to the fact that the petitioners themselves never squarely raised issues against the soundness of the software in any of their pleadings.

Nonetheless, these matters deserve better treatment than a perfunctory dismissal. Thus, for a better comprehension of the issues and circumstances that led to the Court's monumental Decision and possibly, to preclude further erosion of the public's opinion of the COMELEC, I deem it fit to add a few points to the opinion which I advanced in dissent to the ponencia.

On the Court's apprehensions

regarding the software

Clarifying the eight (8) failed marks6 received by MPC repeatedly underscored in the ponencia , the technical advisers stress that all of the ACMs provided by MPC have passed the rigorous testing procedures conducted by the DOST. As regards the software related concerns, they point out that "the provision of an audit trail and the requirement that the software be able to detect and prevent the downloading and entering of previously downloaded data, had been incorporated in the canvassing specifications and in the Counting and Canvassing Test Certification Manual." The counting software has been customized to comply with the final specifications of the COMELEC and has begun testing on January 12, 2004, a day before the Decision was promulgated.7

Moreover, referring to the pronouncement in the Decision that the source code should have been read and analyzed, they add that "in accordance with the software development life cycle, the source code review is performed only on the final version of the software and not during the bid evaluation stage."8 In any event, provisions for source code review have been made and a review would have been conducted during the software acceptance test and certification process.9

The technical advisers take exception to the ponencia's finding that the COMELEC awarded the Contract to MFC "without Comelec having seen, much less evaluated, the final product - the software that would finally be utilized come election day,"10 declaring that while the general software requirements which the supplier undertakes to provide may be specified, "the specific software is not normally demonstrated or prepared before any contractual agreement is entered into due to the large amount of time and effort needed to thresh out specific requirements and to develop the software itself. All that is expected from the supplier before selection is the demonstrable capability to eventually deliver software with all the functionality required."11

Thus, in accordance with ISO/IEC 12207 International Standard for Software Life Cycle Processes, 12 it is only when a supplier has been selected and a contractual agreement entered into that a project organization is established, with membership from both supplier and client, and project teams are formed, among which is the software development team. In turn, "it is only at this point that the specific software requirements are defined, and converted into program specifications, which are then turned over to the contractor for actual design and development."13

The Decision expressed serious concern over the COMELEC's declaration that the Project involved the development of three (3) types of software for use in the evaluation of technical bids, testing and acceptance procedures and on election day.14 To my mind, this declaration is attributable more to the COMELEC's regrettable incoherence than to any intentional violation of its own bidding rules.

As explained by its technical advisers, the three (3) types of software referred to by the COMELEC actually pertain to the three (3) milestones in the life of the counting and canvassing software. Thus, "the 'base' or 'demo' software was the 'type' of software used for the evaluation of technical bids, whereas the 'base' software customized to conform with the final specifications becomes the 'type' of software used in testing and acceptance procedures. When the final 'type' is completed, tested, certified, and finally accepted by the COMELEC, then that becomes the 'type' to be used on election day."15

Remarking on the ponencia's finding that the COMELEC "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,"16 the technical advisers reiterate that "there were never three 'types' of software, but just one 'base' software that underwent several modifications - none of which substantively altered the base software - through the Evaluation of Technical Bids, and the Acceptance and Testing Procedures, until it reached its final version which would then be used on Election Day."17

The procedure taken by the COMELEC, following the accepted software development life cycle, is the same procedure normally adopted in all such procurements and is the only reasonable and realistic course of action that could have been taken.18 The technical advisers maintain that the "final" product or "near-final" product adverted to in the Decision could not have been reasonably expected given the variance in the electoral system of Korea, where the ACMs have been used successfully, from that of the Philippines.

According to them, the COMELEC could not possibly have included "next-to-final" software specifications in the RFP given that "the process of drawing up these specifications is evolutionary in nature, and must take into consideration innumerable variables that are not always foreseeable." Of course, this is not to say that the modifications may be made up to an indefinite point. The software development life cycle precisely provides for a specific date known as the "freeze date" until which changes to the software specifications may be made.19

Evidently, the COMELEC merely followed standard procedures in the IT industry as recommended by its technical advisers, among whom were representatives of the DOST, the COMELEC itself, the Senate and House of Representatives forming the Technical Ad Hoc Evaluation Committee created by Republic Act No. 8436. Thus, it should not have been reproached, much less declared guilty of grave abuse of discretion, for "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."20

Given the foregoing explanation, the Court's suggestion that a final version of the software should have already been available before the ACMs were delivered and paid for21 would actually deter future efforts to automate the elections.

On insinuations of criminal

wrong-doing

As MPC/MPEI correctly point out, the petitioners never made an imputation that the bidding and award of the Contract was attended by violations of criminal laws or tainted with graft and corruption. Even so, my colleagues in the majority cast undue aspersion on the COMELEC by ordering the Office of the Ombudsman to "determine the criminal liability, if any, of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract."22

Not even in the Amari 23 and PIATCO 24 cases, which both involved violations of the Constitution no less, did the Court go as far as saying^ that the public officials concerned may have committed criminal acts and should be subjected to possible criminal prosecution. The suggestion of criminal wrongdoing on the part of the COMELEC, based only on the majority's misgivings and suspicions of irregularity, creates a dangerous precedent as it finds no concrete support in the records of this case.

On the conduct of automated

elections in selected areas

The COMELEC manifests that it is ready to implement automated elections whether on a nationwide scale or in selected areas as identified by Congress in its Joint Resolution.25

The majority should reconsider their Decision, as I respectfully urge them now, to enable the use of the ACMs at least in the areas specified by Congress. It is no secret that the Project has already entailed great effort and expense on the part of the Government. It would be an incredible waste of precious public funds and an immeasurable disservice to the Filipino people besides, for the Court to deprive them of their chance to participate in this much-anticipated modern electoral exercise.

So, I reiterate, with all due respect and in all humility, that the Decision, though popular as it has turned out to be, is long in assumptions but short in legal and factual support.

Consequently, I am constrained to deviate from the cursory disposal of the enlightening motions for reconsideration by my esteemed brethren in the majority.

Very truly yours,

(Sgd.) LUZVIMINDA D. PUNO
Clerk of Court

Endnotes:

1 Motion for Reconsideration dated January 28, 2004.

2 Omnibus Motion A.) For Reconsideration of the Decision Dated 13 January 2004; B) To Admit Exhibits in Refutation of the Findings of Fact of the Court; C) To Have the Case Set For Hearing And/Or Reception of Evidence If Deemed Necessary By The Court.

3 This letter is attached as Annex "9" of the COMELEC's Motion for Reconsideration and Annex "2" of MPEI/MPC's Omnibus Motion.

4 Romeo Monteclaro, Allan Borra, Ma. Leonora Padero and Alfonso Palpal-Latoc, Jr.

5 Supra, note 3 at 15.

6 Two (2) refer to the ACM hardware, one (1) refers to the incorrect report format of the counting software and (5) refer to inadequacies of the canvassing software.

7 Supra, note 3 at 6.

8 Id. at 7.

9 Id at 6.

10 Decision, p. 83.

11 Supra, note 3 at 3.

12 The first international standard that provides a complete set of processes for acquiring and supplying software products and services.

13 Supra, note 3 at 3-4.

14 Partial Compliance and Manifestation dated December 29, 2003.

15 Supra, note 3 at 10.

16 Supra, note 10 at 91.

17 Supra, note 3 at 14.

18 Id. at 9

19 Id. at 12-13.

20 Supra, note 10 at 83

21 Id at 77.

22 Id at 99.

23 G.R. No. 133250, July 9, 2002.

24 G.R. No. 155001, May 5, 2003; Resolution dated January 21, 2004.

25 "Joint Resolution Providing That The Commission On Elections (COMELEC) Implements The Automated Election System Under Republic Act No. 8436 In Selected Geographical Areas In The May 10, 2004 Elections And For Other Purposes."

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