Ombudsman Misreading a Legal Provision

In justifying the BAC’s finding that MPC is qualified to bid, the Ombudsman ratiocinated:

In any case, section 7 (23) (sic) of Republic Act No. 8436 provides that the BAC may disregard or allow certain deviations or deficiencies in weighing the demonstrable capability of the bidders.

Thus, “In the procurement of this system, the Commission shall adopt an equitable system of deductions or demerits for deviations or deficiencies in meeting all the above stated features and standards.”


This is a clear misreading of the law.

The “equitable system of deductions or demerits for deviations or deficiencies” contained in Paragraph 4 of Sec. 7 (and not Sec 7 (23) as stated in the Ombudsman Supplemental Resolution) pertains to the twenty-three features and standards enumerated in the preceding paragraph of said Section which reads:
“In addition, the System shall as far as practicable have the following features:
1. It must be user-friendly and need not require computer-literate operators;
2. The machine security must be built-in and multi-layer existent on hardware and software with minimum human intervention using latest technology like encrypted coding system;
3. The security key control must be embedded inside the machine sealed against human intervention;
4. The Optical Mark Reader (OMR) must have a built-in printer for numbering the counted ballots and also for printing the individual precinct number on the counted ballots;
5. The ballot paper for the OMR counting machine must be of the quality that passed the international standard like ISO-1831, JIS-X- 9004 or its equivalent for optical character recognition;
6. The ballot feeder must be automatic;
7. The machine must be able to count from 100 to 150 ballots per minute;
8. The counting machine must be able to detect fake or counterfeit ballots and must have a fake ballot rejector;
9. The counting machine must be able to detect and reject previously counted ballots to prevent duplication;
10. The counting machine must have the capability to recognize the ballot's individual precinct and city or municipality before counting or consolidating the votes;
11. The System must have a printer that has the capacity to print in one stroke or operation seven (7) copies (original plus six (6) copies) of the consolidated reports on carbonless paper;
12. The printer must have at least 128 kilobytes of Random Access Memory (RAM) to facilitate the expeditious processing of the printing of the consolidated reports;
13. The machine must have a built-in floppy disk drive in order to save the processed data on a diskette;
14. The machine must also have a built-in hard disk to store the counted and consolidated data for future printout and verification;
15. The machine must be temperature-resistant and rust-proof;
16. The optical lens of the OMR must have a self-cleaning device;
17. The machine must not be capable of being connected to external computer peripherals for the process of vote consolidation;
18. The machine must have an Uninterrupted Power Supply (UPS);
19. The machine must be accompanied with operating manuals that will guide the personnel of the Commission the proper use and maintenance of the machine;
20. It must be so designed and built that add-ons may immediately be incorporated into the System at minimum expense;
21. It must provide the shortest time needed to complete the counting of votes and canvassing of the results of the election;
22. The machine must be able to generate consolidated reports like the election return, statement of votes and certificate of canvass at different levels; and
23. The accuracy of the count must be guaranteed, the margin of error must be disclosed and backed by warranty under such terms and conditions as may be determined by the Commission.”

Nowhere does the law say that "the system of deductions or demerits for deviations or deficiencies" applies to the “demonstrable capability of bidders” as the Office of the Ombudsman would want us to believe.