IT’S reckoning time for the Commission on Elections (Comelec), which set a Friday deadline for feuding partners Smartmatic International and Total Information Management Inc. (TIM) to resolve their differences or face prosecution for sabotaging the first national automation project.

But even as Comelec officials have expressed hope the two consortium members can still be persuaded to work together, lawmakers and the justice department continued on Thursday to raise the options for extracting liability.

Describing TIM’s withdrawal from its joint venture with Smartmatic as “100 times worse than economic sabotage,” a senior House leader called for a congressional inquiry to determine the culpability and other violations of existing laws by TIM.

In House Resolution 1249 filed on Thursday, Nationalist People’s Coalition Rep. Rodolfo Plaza of Agusan del Sur said the chamber should investigate the “alarming and suspicious withdrawal of TIM Inc. and ferret out the facts, in its exercise of oversight powers, in order to be guided in its task of legislation.”

Plaza urged the House leadership to immediately calendar the resolution and call for public hearings soon.

Plaza said TIM “should be dealt the harshest penalties under the law for causing not just political instability and social unrest but also economic sabotage, especially because uncertainties in governance will only plunge the country’s ailing economy deeper into recession.”

He said the action of TIM merits a congressional investigation, considering allegations that TIM president Jose Mari Antuñez allegedly demanded P500 million, “in effect offering himself to the highest bidder to buy him out of the project or buy his silence.”

Meanwhile, in a news forum in Quezon City, PDP-Laban Rep. Teodoro Locsin Jr. of Makati City said it was impossible for Antuñez to deny what he said, no matter that some quarters are saying he said it in jest.

“According to Ompong Plaza, he does not find it funny. Why are we interpreting it...[as] a joke? According to Ompong, the words are: ‘Give me half a billion and your problems will go away. Don’t interpret that because the interpretation according to Ompong is extortion. He definitely says it was impossible for him not to say it. So he and his lawyer should think twice about denying that story,” said Locsin in an interview at the sidelines of the forum.

Also, Locsin said the bone of contention—the division of profits—is the only problem.

“When you say problema lang ng hatian [just a problem of splitting money], that’s the whole essence of business; that was the problem, that is the only problem, the control of the funds...At the end of it, I think there was such bad blood between them,” said Locsin.

At the same time, Locsin scored the lawmakers who are “crying on the funeral of automation,” yet didn’t support the project during the long, arduous process of enacting the law.

In the same forum, Locsin and the country’s top election lawyer Romulo Macalintal said that should efforts to resolve the feud that triggered the split between Smartmatic and TIM bog down, the Comelec could enter into a joint venture with Smartmatic without violating any law.

“There is no prohibition; if there is no prohibition they can do it. That’s the nature of law in a legal society.... If it is challenged, I can assure you whoever raises the challenge, he is a member of the cheating committee,” Locsin said.

For his part, Macalintal said the Comelec can enter into a memorandum of agreement with Smartmatic if it is for the benefit of the people.

If this one pushes through, Locsin and Macalintal said, it could be beneficial to the government because the Comelec would save at least P3 billion, which, Macalintal explained, pertained to the profit that would be ascribed to TIM. The winning bid by the Smartmatic-TIM group was for P7 billion.

Locsin said besides these savings, once the Comelec partners with Smartmatic, the Comelec would be able to check the expenses.

Macalintal also advised the Comelec to set aside plans to file criminal charges against the winning bidder and instead think of a solution that will salvage the situation.

Use Mega Pacific machines

IF all else fails, Macalintal reiterated his call for the Comelec to use the 1,991 automated counting machines of Mega Pacific and stop saying there was an order from the Supreme Court not to use it.

“The Supreme Court did not order the Comelec not to use the machines. The Court said Comelec and the Solicitor General must undertake all the necessary means to protect the interest of the government and one of them is to use these machines,” Macalintal said.

According to Macalintal, the Department of Science and Technology had issued a certificate saying the machines were 100-percent accurate and that Secretary Estrella Alabastro had pronounced she is willing to stake her reputation as to the accuracy of the machines.

“Why don’t we test these machines again in the presence of PPCRV [Parish Pastoral Council for  Responsible Voting] and all the stakeholders and if it is proven to be 100-percent accurate, the Comelec can file a manifestation with the Supreme Court, which I think will appreciate the situation.”

He urged Comelec to talk with Mega Pacific, “and I believe Mega Pacific will agree to use the machines.”

‘Don’t call off deal’

Saying “friendship is not a crime,” Senate Minority Leader Aquilino Pimentel Jr. said the deal with Smartmatic should be called off only “if criminal demands are proven to have been made.” But, he said, “if things are simply being speculated on, the automation should go on. And those who have the proof of any wrongdoing should come out in the open and say so. It is important that thievery in government should be stopped the moment it rears its ugly head.”

Procurement law

Justice Secretary Agnes Devanadera said the government can seek refuge under Republic Act 9184, or the Government Procurement Reform Act, against a private firm that backs out of a government project after getting the award.

Devanadera said the justice department or the Office of the Solicitor General (OSG), which she also heads, have yet to receive any request for legal advice from the Comelec. 

“There is a penal provision under the Procurement Act. It’s what we follow,” Devanadera said when asked about the specific laws that can be used against private firms that abandon government projects after being declared winning bidder.

Article XXI, Section 65, (c) (4), imposes a penalty of imprisonment of not less than six years to 15 years on an individual who will withdraw a bid, after having qualified as the lowest bidder, for the purpose of forcing the procuring entity to award the contract to another bidder.

“That’s just an academic information,” Devandera said, while clarifying that such reference should not be construed as prejudging the case.

Threat of lawsuit

A group calling itself the Concerned Citizens Movement, through lawyer Harry Roque, said in a press conference they will file a taxpayers’ suit before the Supreme Court against the Comelec if it pushes through with the automation project with Smartmatic and TIM, which he said should not have been allowed to bid as a joint venture when it had not perfected its joint-venture contract.

Roque said some 20 individuals will file an injunction against the poll body and the two warring companies.

Comelec spokesman James Jimenez questioned the timing and the threat of Roque’s group, saying they should have monitored the bidding and not come in at this late hour.

“Now is the time to find solutions on ways on how to get out of this problem and to ensure the cleanliness of the coming election. What’s happening apparently is that everyone is taking the opportunity to start off another witchhunt,” Jimenez said.

The TIM’s recent pullout raised eyebrows and rumors floated that their decision was influenced by “prominent personalities,” including First Gentleman Mike Arroyo as part of the administration’s efforts to derail the elections.

Malacañang’s Office of External Affairs Undersecretary Dan Consumido said, however, that TIM is not connected with Mr. Arroyo, as alleged by party-list Rep. Teodoro Casiño.

“Its owner Jose Mari Antuñez is an opposition supporter. TIM conducted quick-count operations at the house of Joseph Estrada’s crony, Melo Santiago, in 2004 elections. They abandoned quick count when the incumbent President Macapagal Arroyo was winning,” Consumido said, whose son is currently working in TIM.

‘Review deal with consultants’

SEN. Edgardo Angara, asserting the need for transparency and accountability, pressed for a full disclosure of foreign consultants paid with taxpayers’ money in all agencies and branches of government.

In a statement, Angara said the demand for full disclosure applies to operations of public interest, such as the 2010 poll-automation plan now in danger of being aborted due to a brewing squabble between the winning bidders for the project, Barbados-based Smartmatic and its local partner, TIM.

“Consistent with the state policy to ensure full public disclosure of all its transactions involving public interest, we should require [extensive disclosure] of the identity, nature of work and compensation of foreign consultants hired or retained by the government, its agencies, instrumentalities, including government-owned or -controlled corporations and their subsidiaries,” the senator said.

Angara earlier filed Senate Bill 900, also known as the Foreign Consultants Disclosure Bill, which would compel all branches and agencies of government with foreign consultants in their payroll to provide the Department of Budget and Management, in writing and under oath, the pertinent information involving their foreign consultants.

The disclosure requirement would let the taxpayers know if the services for which the consultants are being hired are indeed indispensable and cannot be rendered by local experts. (With J. San Juan, S. Fabunan, B. Fernandez)