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CONCURRING OPINION

YNARES-SANTIAGO, J.:

I am mindful of our ruling, expressed only recently in Makalintal v. COMELEC,¹ that the Commission on Elections (COMELEC), being an independent constitutional body, ought to be given considerable latitude in the discharge of its functions.The key point to be remembered is the fundamental objective which all of the COMELECs actuations should be destined to achieve, i.e. the accomplishment of free, orderly and honest elections.If the means adopted by the COMELEC run clearly contrary to its fundamental objective, it is our right more, our duty to nullify the COMELECs actuations.

Our experience during the May 11, 1998 regular elections held in the Autonomous Region in Muslim Mindanao (ARMM)² should have taught us that the Philippines may be unprepared for the use of automated counting machines.Whereas it is successfully adopted in many countries around the world, this sophisticated technological advancement seems beyond the reach of the Philippines at this stage in our countrys development.If we persist in attempting the use thereof, even if as in this case such machines do not meet the standards of accuracy that our own laws demand, we would be tampering with the conduct of free, orderly and honest elections, and thus we would be distorting the will of the electorate.

As pointed out by the Honorable Justice Jose C. Vitug in his Separate Opinion, this Court is not a trier of facts, and a review of the technical evidence is not the proper office of a petition for certiorari , prohibition and mandamus .³ The questions of law, however, and the questions of the COMELECs grave abuse of discretion, are squarely within the purview of this Court in this case.

In my opinion, there are three main grounds which warrant granting the instant petition.First, I believe that the special circumstances availing in this case warrant the relaxation of the rule on exhaustion of administrative remedies.Second, the COMELEC gravely abused its discretion when it clearly contracted with a non-eligible entity, and therefore the contract for the second phase of the automated counting system is null and void.Finally, even assuming the eligibility of the other contracting party, the COMELEC gravely abused its discretion when it changed the technical requirements for accuracy of the automated machines and software, which warrants the nullification of the contract.

I.

On Non-Exhaustion of Administrative Remedies

A long line of cases establishes the basic rule that regular courts of justice should not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies.⁴ The underlying principle of the rule on exhaustion of administrative remedies rests on the presumption that when the administrative body, or grievance machinery, is afforded a chance to pass upon the matter, it will decide the same correctly.⁵ ςrνll

The principle of exhaustion of administrative remedies is not an ironclad rule.This doctrine is relative, and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial settings of a case.⁶ ςrνll

In the past, the principle has been disregarded when (1) there is a violation of due process;⁷ (2) the issue involved is purely a legal question;⁸ (3) the administrative action is patently illegal amounting to lack or excess of jurisdiction;⁹ (4) there is estoppel on the part of the administrative agency concerned;¹⁰ (5) there is irreparable injury;¹¹ (6) the respondent is a department secretary whose acts, as an alter ego of the President, bear the implied and assumed approval of the latter;¹² (7) to require exhaustion of administrative remedies would be unreasonable;¹³ (8) it would amount to a nullification of a claim;¹⁴ (9) the subject matter is a private land in land case proceedings;¹⁵ (10) the rule does not provide a plain, speedy and adequate remedy; and (11) there are circumstances indicating the urgency of judicial intervention,¹⁶ as when public interest is involved.¹⁷ ςrνll

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 nations public officers bears urgent public interest considerations.More, as I will discuss below, the administrative action involved here is patently illegal, amounting to lack or excess of jurisdiction.

These two reasons warrant the relaxation of the rule of exhaustion of administrative remedies.

II.

On the Non-Eligibility of Private Respondents.

I am not persuaded by the argument that the individual members of the so-called Consortium bound themselves to perform particular obligations under individual agreements executed with MPEI, and that these separate agreements suffice to constitute an eligible joint venture under the Request For Proposal (RFP) promulgated by the COMELEC.The fact that WeSolve, SK C & C, Election.Com and ePLDT bound themselves to MPEI does not mean that a joint venture was executed.These individual entities are merely the sub-contractors of MPEI, and their liability for any breach is only to MPEI.

Under the RFP, a joint venture has been given a very strict definition.To be eligible to submit a bid, the following criteria must be met:

Manufacturers, suppliers and/or distributors forming themselves into a joint venture, that intend to be jointly and severally liable for a particular contract, provided Filipino ownership thereof shall be 60%.¹⁸ (underscoring supplied)ςrαlαωlιbrαrÿ

There are therefore three qualifications for eligibility under the RFP.First, the manufacturers, suppliers and/or distributors must expressly form themselves into a joint venture.Second, this joint venture must demonstrate an intent that the individual members be jointly and severally liable for a particular contract.Finally, the Filipino ownership of the joint venture must be 60%.

Whereas the RFP does not require the members of the joint venture to execute a single document to constitute the joint venture, there must be sufficient evidence that such a joint venture was indeed formed, whether this evidence is a single document, or a multiplicity of documents.It is plain that the joint venture must be formed as a single entity, responsible for the entirety of the contract, even if separate agreements among the individual members of the joint venture would lay out the specific tenor of their obligations to each other; otherwise, it would be impossible to evaluate the nationality of this joint venture, which nationality is the third requirement for eligibility.

Conspicuously absent from the records of this case are documents that demonstrate that the individual members of the so-called Consortium actually formed or constituted themselves into a joint venture.Jurisprudence discussing a joint venture lays out the rule that such an entity presupposes generally a parity of standing between the joint co-ventures or partners, in which each party has an equal proprietary interest in the capital or property contributed, and where each party exercises equal rights in the conduct of the business.¹⁹ ςrνll

In Aurbach, et. al. v. Sanitary Wares Manufacturing Corporation, et. al.,²⁰ we expressed the view that a joint venture may be likened to a partnership, thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The legal concept of a joint venture is of common law origin.It has no precise legal definition, but it has been generally understood to mean an organization formed for some temporary purpose.It is hardly distinguishable from the partnership, since their elements are similarcommunity of interest in the business, sharing of profits and losses, and a mutual right of control.The main distinction cited by most opinions in common law jurisdiction is that the partnership contemplates a general business with some degree of continuity, while the joint venture is formed for the execution of a single transaction, and is thus of a temporary nature.This observation is not entirely accurate in this jurisdiction, since under the Civil Code, a partnership may be particular or universal, and a particular partnership may have for its object a specific undertaking.It would seem therefore that under Philippine law, a joint venture is a form of partnership and should thus be governed by the law of partnerships.The Supreme Court has however recognized a distinction between these two business forms, and has held that although a corporation cannot enter into a partnership contract, it may however engage in a joint venture with others. (citations omitted)

In other words, the legal concept of a joint venture, since akin to a partnership, involves a common agreement in which all individuals and entities party to the joint venture bind themselves, jointly, to perform a common undertaking or undertakings.The definition of a joint venture under the RFP is in line with this legal definition.

There is nothing in the records that would indicate that any such entity was created by the individual members of the so-called Consortium.In the absence of any evidence, we must conclude that no such agreement exists.

Since we are unable to conclude that the joint venture has any legal existence, it is impossible to evaluate whether or not the third criterion setting out the nationality requirement for an eligible joint venture has been met by the so-called Consortium. The so-called Consortium, therefore, has failed to meet the first and third criteria.

There is also a gross failure on the part of the private respondents to meet the second criterion.There is a marked absence of intent that the individual members of the so-called Consortium be jointly and severally liable for the contract.

The records contain particular individual agreements that MPEI entered into with other entities.A perusal of the individual agreements that MPEI entered into with the other entities readily demonstrates that it was always the intent of MPEI to have direct and primary liability for any breach of the Contact with COMELEC.

Part of the records are so-called Teaming Agreements which MPEI entered into with Election.Com Ltd.²¹ and ePLDT Inc.,²² both dated March 3, 2003.An examination of the language of these Teaming Agreements would once more demonstrate that it was MPEI, and MPEI alone, which intended to bid for the Contract with the COMELEC, and intended to be bound thereby.First, both these Teaming Agreements contain stipulations designating MPEI as the Contractor and the other party as merely the Subcontractor.²³ Each of these Teaming Agreements acknowledges that the agreements were entered into in the expectation that COMELEC would award the Contract to the Contractor, MPEI.²⁴ Absent from either of these Teaming Agreements is any reference to the possibility that COMELEC would contract with the so-called Consortium.

Moreover, both of these agreements state that the obligation of the Subcontractor was the delivery of equipment or provision of services to the Contractor, MPEI,²⁵ and indeed expressly limit the Subcontractors role in the entire project to be merely that of a provider of the equipment and services.²⁶ Liability for failure to perform these obligations is expressly limited.The Subcontractors would be liable only to MPEI, and not to the COMELEC.

Also part of the records is the Memorandum of Agreement entered into between MPEI and WeSolv Open Computing, Inc.²⁷ The very first preambulatory clause thereof reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

WHEREAS, pursuant to an open competitive bidding to be conducted by the Commission on Elections (COMELEC) of the Philippine Government, Mega Pacific intends to submit a bid for Phase II:Automated Counting and Canvassing System (the Project) of the Modernization Program of the Philippine Electoral System;²⁸ (underscoring supplied)ςrαlαωlιbrαrÿ

Mega Pacific, the entity referred to, is defined as Mega Pacific eSolutions, Inc.²⁹ and not the so-called Consortium.In other words, MPEI and WeSolv understood that MPEI would be bidding for the Contract, and MPEI alone would be contracting with COMELEC.

The expression of joint and several liability of WeSolv does not transform the agreement into a joint venture.There is a clear limit to the extent of this liability.As plainly stated in the Memorandum of Agreement:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

WeSolv shall be jointly and severally liable with Mega Pacific only for the particular products and/or services supplied by the former for the Project.³⁰ ςrνll

The very first reference to any so-called Consortium is in the Memorandum of Agreement dated March 9, 2003, between MPEI and SK C & C, a corporation organized and existing under and by virtue of the laws of the Republic of Korea.³¹ The initial preambulatory clause reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

WHEREAS, pursuant to an open competitive bidding to be conducted by the Commission on Elections (COMELEC) of the Philippine Government, the Mega Pacific Consortium shall bid for Phase II:Automated Counting and Canvassing System (the Project) of the Modernization Program of the Philippine Electoral System; xxx xxx xxx.³² ςrνll

That Memorandum of Agreement also contains the following clause:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Each of the individual members of the Consortium shall be jointly and severally liable with the Lead Firm for the particular products and/or services supplied by such individual member for the project, in accordance with their respective undertaking or sphere of responsibility.³³ ςrνll

Three things are significant about this Memorandum of Agreement.

First, whereas there is reference to a Consortium, the specific composition of the Consortium is not specified.Thus, the records are bereft of any evidence that would demonstrate which entities, if any, would be parties to this Consortium.It is therefore impossible to make a factual determination as regards whether the Consortium would meet the strict requirements for a qualified bidder outlined in the RFP.

Second, the Memorandum of Agreement specifically limits the liability of each member of this Consortium only in accordance with their respective undertaking or sphere of responsibility.Thus, the joint and several liability of each member of the Consortium would again be only within a very limited application, i.e., only to the extent of its individual undertaking.

Third, and most significant, the Memorandum of Agreement is only between MPEI and SK C & C.There is no evidence of any similar Memorandum of Agreement, referring to a Consortium, entered into between MPEI and any other entity.The joint and several liability referred to in the quoted paragraph, therefore, would pertain only to MPEI and SK C & C, since these are the only two parties to this particular contract, and not to any other member of the Consortium, if any.In the absence of evidence, it is impossible to conclude that there are other members of the Consortium, and equally impossible to determine the extent of their liability, if any.

In sum, therefore, there is a conspicuous dearth of evidence to demonstrate that there was, indeed, a Consortium; if there was a Consortium, the specific composition thereof; and, if there was a Consortium, the liability of its individual members, for breach of the contract to COMELEC.

All this demonstrates that, even if the other contracting party were the so-called Consortium, this Consortium would be ineligible to enter into the contract with the COMELEC.

However, it is plain that the COMELEC entered into a contract not with this Consortium, but rather with MPEI an entity which, it is acknowledged, would per se be ineligible to bid.A plain reading of the contract denominates the parties to be:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

COMMISSION ON ELECTIONS, the government institution charged with the enforcement and administration of laws relative to the conduct of elections, with principal office address at Postigo Street, Intramuros, Manila, Philippines, represented in this act by its Chairman, Hon. Benjamin S. Abalos, hereinafter referred to as the COMELEC.

and

MEGA PACIFIC eSOLUTIONS, INC., a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines, with principal office address at Suite 707, Tower One & Exchange Plaza, Ayala Triangle, Ayala Avenue, Makati City, Philippines, represented in this act by its President, Willy U. Yu, hereinafter referred to as MEGA.³⁴ ςrνll

The Contract Documents referred to are the following:

1.4.Contract Documents

The following documents, referred to collectively as the Contract Documents, are hereby incorporated and made integral parts of the Contract:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

(1) this Contract together with its Appendices;chanroblesvirtuallawlibrary

(2) the Request for Proposal (also known as Terms of Reference) issued by the Comelec including Tender Inquiries and Bid Bulletins;chanroblesvirtuallawlibrary

(3) Tender Proposal as submitted by Mega.

All Contract Documents shall form part of the Contract even if they or any one of them is not referred to or mentioned in the Contract as forming a part thereof.Each of the Contract Documents shall be mutually complementary and explanatory of each other such that what is noted in one although not shown in the other shall be as binding as if required by all, unless one item is a correction of the other.

The Intent of the Contract Documents is the proper, satisfactory, and timely execution and completion of the Project in accordance with the Contract Documents.Consequently, all items necessary for the proper and timely execution and completion of the Project shall be deemed included in the Contract.

Again, conspicuously absent from this contractual definition of a Contract Document is any mention of any subsidiary agreement between a purported Consortium and the COMELEC.Indeed, a plain reading of the definition of the Contract Document would indicate that, insofar as the parties to the contract were concerned, the bid itself was submitted by MPEI and not the Consortium.

Moreover, the definition of Contract Document could easily have integrated the subsidiary agreements, incorporating them by reference, in the same way that the Request for Proposal and Tender Proposal were incorporated by reference.

These contracts were not even appended as annexes to the main contract.The appendices to the main contract are: Products and Services to be Acquired from, and Provided by, Mega Pacific Solutions, Inc., and Technical Specifications;³⁵ Ballot Counting System;³⁶ Canvassing of Votes System/Software;³⁷ Project Management Approach;³⁸ Implementation and Roll-Out Plan;³⁹ Timelines;⁴⁰ List of Goods;⁴¹ List of Documentation;⁴² Training Summary;⁴³ List of Services;⁴⁴ Schedule of Communication/Information Dissemination Materials;⁴⁵ and Global Price Summary.⁴⁶ ςrνll

Moreover, an examination of the various obligations in the contract readily demonstrates that all those obligations pertain only to either COMELEC or MPEI.None of the other entities under the so-called Consortium has any obligations to COMELEC under the Contract.It is apparent that only COMELEC and MPEI are bound thereunder.The argument that the Consortium, as an entity, bound itself to perform particular obligations under the contract is easily debunked by an examination of the contract itself.

Various other documents also support the fact that only MPEI, not any so-called Consortium, contracted with COMELEC.For instance, there isthe Secretarys Certificate, dated March 5, 2003, executed by Enrique T. Tansipek, the Corporate Secretary of MPEI, whichattests to the corporate authority given by the MPEI board to enable MPEI (not the so-called Consortium) to participate in the bidding, in its own behalf, and not in behalf of any so-called Consortium.⁴⁷ There are various Affidavits of Undertaking dated March 7, 2003, executed by Willy U. Yu, President of MPEI, which attest that (1) MPEI (not any so-called Consortium) will be participating in the bid for the contract; and (2) the other entities, such as WeSolv, Oracle, and Election.com Ltd., are referred to merely as the foreign suppliers,⁴⁸ and not as joint venture partners, or as individual members of a so-called Consortium.

III.

On the Failure of Private Respondents to Meet the

Requirements for Eligible Bids.

Finally, even if we were to concede that the COMELEC contracted with an eligible entity, it appears that the counting machines and ballot-counting software submitted by the so-called Consortium simply failed to meet the accuracy rating required by the RFP.

In the RFP, the COMELEC required that both the counting machines and ballot-counting software should have an accuracy rating of 99.9995 or better.

After the bids were submitted, the accuracy criteria were suddenly changed to 99.995 percent.

Only very recently, in the Piatco⁴⁹ case, we held:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

An essential element of a publicly bidded contract is that all bidders must be on equal footing. Not simply in terms of application of the procedural rules and regulations imposed by the relevant government agency, but more importantly, on the contract bidded upon. Each bidder must be able to bid on the same thing. The rationale is obvious. If the winning bidder is allowed to later include or modify certain provisions in the contract awarded such that the contract is altered in any material respect, then the essence of fair competition in the public bidding is destroyed. A public bidding would indeed be a farce if after the contract is awarded, the winning bidder may modify the contract and include provisions which are favorable to it that were not previously made available to the other bidders.

It is inherent in public biddings that there shall be a fair competition among the bidders. The specifications in such biddings provide the common ground or basis for the bidders. The specifications should, accordingly, operate equally or indiscriminately upon all bidders.⁵⁰ ςrνll

To change the eligibility requirements mid-stream, and after bids had already been submitted, completely subverts the integrity of the bidding process and warrants the nullification of the award of the contract, whether the other contracting party was MPEI or the so-called Consortium.

In sum, the serious defects in the bidding process indicate a grave abuse of discretion on the part of public respondent COMELEC, which seemed to display a marked bias in favor of awarding the contract to the private respondent MPEI or the so-called Consortium.Whereas automated counting might greatly speed up our election process, we should take great pains to make certain that the machines used are not flawed.To my mind, the subversion of the bidding process already makes the automation of the 2004 elections inherently suspect, which will have a potential negative effect on the integrity of the results.At this stage in our nations history, we should all strive toward restoring the publics faith in the stability of our government institutions, and the use of suspect machines in counting votes cannot but subvert that faith.

IN VIEW WHEREOF, I CONCUR with the majority opinion andvote to GRANT the petition, specifically, to: (1) declare NULL and VOID Resolution No. 6074 of the COMELEC awarding the contract for the second phase of the automated counting and canvassing system of the Modernization Program of the Philippine Electoral System to either Mega Pacific eSolutions, Inc. or the Mega Pacific Consortium; (2) PROHIBIT the COMELEC from implementing any contract entered into with either Mega Pacific eSolutions, Inc. or the Mega Pacific Consortium for the second phase of the automated counting and canvassing system of the Modernization Program of the Philippine Electoral System; and (3) COMPEL the COMELEC to conduct a re-bidding of the second phase of the automated counting and canvassing system of the Modernization Program of the Philippine Electoral System.

Endnotes:

¹ G.R. No. 157013, 10 July 2003.

² See Loong v. Commission on Elections, 365 Phil. 386 (1999).

³ Separate Opinion, Vitug, J., at p. 2.

⁴ Sta. Ines Melale Forest Products Corporation v. Macaraig, 359 Phil. 831 (1998); Felipe Ysmael, Jr. and Co. v. Deputy Executive Secretary, G.R. No. 79538, 18 October 1990, 190 SCRA 673; Concerned Officials of MWSS v. Vasquez, 310 Phil. 549 (1995). See SEVERIANO S. TABIOS, Annotation on Failure to Exhaust Administrative Remedies as a Ground for Motion To Dismiss, 165 SCRA 352, 357-362 (1988).

⁵ Union Bank of the Philippines v. Court of Appeals, 352 Phil. 808 (1998); University of the Philippines v. Catungal, Jr., 338 Phil. 808 (1997).

⁶ Paat v. Court of Appeals, 334 Phil. 146 (1997).

⁷ Quisumbing v. Judge Gumban, G.R. No. 85156, 5 February 1991, 193 SCRA 520; Salinas v. NLRC, G.R. No. 114671, 24 November 1999, 319 SCRA 54; Samson v. NLRC, 32 Phil. 135 (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. POEA, G.R. No. L-76633, 18 October 1988, 166 SCRA 533; Paat v. Court of Appeals, 334 Phil. 146 (1997).

⁹ Industrial Power Sales, Inc. v. Sinsuat, G.R. No. L-29171, 15 April 1988, 160 SCRA 19.

¹⁰ Vda. De Tanv. Veterans Backpay Commission, 105 Phil. 377 (1959).

¹¹ De Lara v. Cloribel, 121 Phil. 1062 (1965).

¹² Demaisip v. Court of Appeals, 106 Phil. 237 (1959).

¹³ Cipriano v. Marcelino, 150 Phil. 336 (1972).

¹⁴ Alzate v. Aldana, 107 Phil. 298 (1960).

¹⁵ Soto v. Jareno, G.R. No. L-38962, 15 September 1986, 144 SCRA 116.

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).

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.

²¹ Rollo, p. 2355.

²² Id., p. 2364.

²³ Id., pp. 2355 and 2364.

²⁴ Id., pp. 2358 and 2367.

²⁵ Id., pp. 2355 and 2364.

²⁶ Id.

²⁷ Id., p. 2348.

²⁸ Id.

²⁹ Id.

³⁰ Id., p. 2349.

³¹ Id., p. 2352.

³² Id.

³³ Id., p. 2353.

³⁴ Automated Counting and Canvassing Project Contract, Rollo, at p. 2198.

³⁵ Id., Appendix A, Rollo, at p. 2218.

³⁶ Id., Appendix B, Rollo, at p. 2238.

³⁷ Id., Appendix C, Rollo, at p. 2259.

³⁸ Id., Appendix D, Rollo, at p. 2275.

³⁹ Id., Appendix E, Rollo, at p. 2292.

⁴⁰ Id., Appendix F, Rollo, at p. 2310.

⁴¹ Id., Appendix H, Rollo, at p. 2314.Appendix G, if any, is not part of the records.

⁴² Id., Appendix I, Rollo, at p. 2322.

⁴³ Id., Appendix J, Rollo, at p. 2326.

⁴⁴ Id., Appendix K, Rollo, at p. 2335.

⁴⁵ Id., Appendix L, Rollo, at p. 2341.

⁴⁶ Id., Appendix M, Rollo, at p. 2344.

⁴⁷ Rollo, p. 1408.

⁴⁸ Id., pp. 1870; 1954; 2052.

⁴⁹ Lopez v. Piatco, G.R. No. 155661, 5 May 2003.

⁵⁰ A. Cobacha & D. Lucenario, LAW ON PUBLIC BIDDING AND GOVERNMENT CONTRACTS 13 (1960).