· The Counsel representing the Bids and Awards Committee of Comelec clarified whether the members of the BAC are treated as respondents or accused and asked whether there is a possibility that the resolution of the Office of the Ombudsman be changed after the conduct of the clarificatory hearings. The Counsel also filed the motion to withdraw the OMB resolution or suspend the effects of the resolution on July 19, 2006 at the Office of the Ombudsman and asked for the Office to respond to this motion during the clarificatory hearing. Orlando Casimiro and Dennis Villa-ignacio requested that the Office be given ample time to respond to the motion filed by the Counsel.
· The manifestations made by Abalos, Borra and Tuason questioning the authority of the Ombudsman to investigate the case involving impeachable officers was received by the Office of the Ombudsman on July 17.
The Ombudsman released an order dated July 19 and responded that they have the authority to investigate cases involving impeachable officers pursuant to Section 22 of the RA 6770 (The Ombudsman Act). According to the deliberations made on Senate Bill #? on the creation of the Ombudsman, Guingona made an observation about Section 22’s conflict with Section 16. Enrile responded in the negative … (on what basis, not clear to us).
Further, the Order has defined ‘serious misconduct’ to mean all grounds for impeachment and not the same as the Civil Service Commission’s definition of serious misconduct. Serious misconduct includes the following among others: culpable violation of the Constitution, treason, bribery.
Section 22 need not require an initial administrative complaint and that the Ombudsman may conduct investigation motu propio.
· The panel also mentioned supplemental rules to the clarificatory hearing:
1. There will be no cross-examinations by parties but may submit their questions to the panel for the panel to ask
2. All manifestations should be in writing
· DOST officials were invited to present an overview of DOST's testing and technical evaluation of Automated Counting Machines. The DOST officials present, were as follows:
- Sec. Estrella Alabastro
- Usec. Fortunato Dela Peña
- Engr. Ronaldo Villoria (Executive Director of TAHEC and Chairman of the Technical Evaluation Committee)
- Engr. Fred Liza
· Atty. Emilio Capulong of Bantay Katarungan, one of the complainants, raised his concern over the timeliness of the presentation--"Why is the presentation being done now and not prior to the release of the resolution?" Casimiro reiterated that the hearing is a continuation of the preliminary investigation conducted by the Office of the Ombudsman.
Quick Notes on the DOST Presentation:
· DOST said that they did not make any recommendations on what machines the COMELEC should procure. DOST was authorized by RA 8436 to conduct evaluation and testing on the automated counting machines (ACM). TAHEC (a DOST division/arm) along with the Technical Working Group prepared the technical requirements for the procurement of ACMs
· There were only two bidders who submitted machines for evaluation – Megapacific Consortium and Total Information Management (TIM)
· The scope of the evaluation covered only 27 key requirements out of 206 requirements as per COMELEC’s request for proposal. The 27 key requirements are as follows:
1. Accuracy requirement of 99.995%
2. Audit trail
3. Election retain
4. UPS
5. Ballots (2 sided)
6. Detect previously counted ballots
7. Capability to restore results
8. security feature
9. security feature (physical key)
10. safe use
11. capability to connect to printer
12-13. election results
14. audit trail
15-22 City and municipal software
23-27 Consolidation system software
· During acceptance testing, only 10 key requirements were covered for inspection. The 10 requirements focused on the hardware component only. During acceptance testing, 1991 units of Megapacific were tested. TIM units failed during evaluation.
· DOST officials also verified whether the machines were pre-programmed. The verification process involved mixing of ballots (between two precincts) to check whether the machines were programmed to register a count of the expected number of ballots in a specific precinct vs. actual count.
o (Own thoughts: Does this mean that the ACMs can actually be programmed to count?)
· DOST made the observation also that during evaluation, they requested the bidders to submit 2 machines. Megapacific submitted only 1 vs. TIM submitted 2. DOST also required that reading of the ballots be two-sided. TIM’s machines read one side only. DOST sought COMELEC’s response to these observations (I failed to note what COMELEC’s response was).
· DOST also noted that the ballots submitted for counting by Megapacific were preshaded by the supplier while TIM’s ballots were preshaded by COMELEC.
· No COMELEC Commissioner was present during the bidding. A certain Atty. Jun Tolentino was the designated representative of the COMELEC.
· The allowable margin of error set by DOST is 1 out of 20,000. DOST notes however that RA 8436 requires accurate count of the ballot in the form prescribed by the COMELEC. At this point, COMELEC has not yet prescribed the form of the ballot but to DOST, that is not relevant anymore and that accuracy of the count is more important for the conduct of their evaluation.
· DOST noted also that during acceptance testing, Megapacific complained about their ballots having altered markings already. They noted that their ballots had finer markings and the shadings were inside the box but during testing, there were ballots that weren’t consistent with their own.
· TIM requested for a retest of their machines which the DOST did. During the first test, TIM had 5 out of 27 pass marks and during retest scored 9 out of 27.
