Republic of the Philippines Commission on Elections

lntramuros, Manila
IN THE MATTER OF THE CANCELLATION OF

THE CONTRACT FOR THE SUPPLY AND

DELIVERY OF 1,815,000 PIECES OF BALLOT SECRECY FOLDER FOR THE MAY 10, 2O1O NATIONAL AND LOCAL ELECTION. OTC PAPER SUPPLY, as single proprietorship WILLY YOUNG,

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Movant.

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FoR REcoNsTDERATtoN

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oTc Paper supply, by counsel, respectfully moves for a reconsideration

of

Resolution No. 8814

.\

whichwas promulgated bythis Honorable commission on April 5,20Lo (copy received on April 7,2010)
upon the following presentation: 1. Resolution No. 8814 recalled Resolution No. 8795 (promulgated on March 15,2010) which awarded the contract for the supply and delivery of 1,815,000 pieces of ballot secrecy folder for the use

in the May 70,20Io National and Local Elections to herein movant on the ground that: (a) the total number of ballot secrecy folder recommended to be purchased exceeded the total number of ballot secrecy folders that may actually be used during the elections; (b) upon re-deliberation by the
Honorable Commission, it was discovered that the purchase price of Php 380.00/folder is extravagant and beyond the ordinary needs of the Commission; and, (c) Chairman Jose Melo has declined to sign the
purchase order.

2. This Honorable Commission should reconsider Resolution No. 8814. lt effectively terminated
an existing contract of the Commission without the observance of the process, both procedural and substantive, required by law. Let us explain.

3.

A valid contract

exist between movant

OTC Paper Supply and

the Commission for the supply

and delivery of 1,815,000 pieces of ballot secrecy folder

3.01 The procurement of goods and services by the Commission is governed by

the Government Procurement Reform Act or

RA 9184.

3.O2 On March L6,zOtO, movant OTC Paper Supply received a Notice of Award

for the supply and delivery of 1,8L5,000 pieces of ballot

secrecy folder which the

Commission issued through its Bids and Awards Committee. A photocopy of the Notice

of Award dated March 15, 20L0 is hereto attached and made an integral part hereof as Annex "A". 3.03 Pursuant to the terms of the Notice of Award, on March
OTC

tf

ZO1O, movant

submitted a Performance Bond to the Commission for the supply and delivery of

1,8L5,000 pieces
Paper Supply

of ballot

secrecy folder:. A photocopy of the Bond

of movant

OTC

with the receipt mark of this Honorable Commission dated March

19,

20L0 is hereto attached and made an integral part hereof as Annex ,.8".

3-04 Under Section 37 of RA 9184, movant OTC paper Supply has ten (10) days

from its receipt of the Notice

of

Award within which to formally enter into contract

with this Commission and under Section 38 of the said law, if no action on the contract
is taken by the head of this commission within the aforesaid period, the contract shalt be deemed approved. Thus "Section

xxx

38.

lf no action on the contract is taken by the head of the procuring entity, or by his duly authorized representative, or by the concerned board in the case of government owned and/or controlled corporations, within the periods specified in the preceding paragraph, the contract concerned shall be deemed approved.
xxx"

3.05

By operation

of the law, therefore, on March 27,

ZO1-O

or ten days after

Honorable

the receipt by movant

OTC Paper Supply

of the Notice of Award, this

Commission is deemed to have approved

its

contract with the movant for the supply

and delivery of 1,815,000 pieces of ballot secrecy folder.

4. under RA 9184, a contract entered into by a procuring entity may be terminated by the
procuring entity only upon grounds recognized by and only after compliance with the process required
under the said law.

5. The termination of the contract of this Honorable Commission with the herein movant
through Resolution 88L4 runs counter to the procedure prescribed under
RA 9184

5.01 Under Rule lV, Section 1 of the Guidelines for Termination of Contracts,
Annex "A" of the lmplementing Rules and Regulationsr "upon receipt of a written report

of acts or causes which may constitute ground(s) for termination as aforementioned, or

upon its own initiative, the lmplementing Unit shall, within a period of seven (7)
calendar days, verify the existence of such ground(s) and cause the execution of
a

Verified Report, with relevant evidence attached.,, ln the instant case, based on
newspaper reports, the Committee tasked

to investigate the alleged anomaly in the

awarding of the said contract was formed onry after the rapse of severar days after this
Honorable Commission terminated its contract

with the herein movant.

a

5.02 Under Section 2 0f the aforesaid rule, this commission is required to send

Notice to Terminate to herein movant which shall state: the ground for the termination
t

and the acts that constitute the same; the extent of the termination whether in whole and in part; the instruction to show cause to the supplier why the contract should not

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be terminated; and any special instruction from the procuring entity. Again, this
requirement was not complied in the termination of the herein movant,s contract.

5.03 Under Section 3 of the aforesaid rule, this Honorable Commission

is

A rd
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required to give herein movant an opportunity to explain why the contract should not
be terminated through the submission of a verified position paper within seven (7) days

from receipt of the Notice to Terminate. Again, this process was not observed.
5.04 rt is onry after affording due process to herein movant as above-described

that this Honorable commission may, under section 5 of the aforesaid rule, render
decision to terminate its contract with the herein movant.

6. More importantly, none of the grounds for termination of a procurement contract

enumerated under Rule lll of Annex "A" of the lmplementing Rules and Regulations of RA 91"g4 are
present in the instant case.

5.01 Movant OTC paper Supply has not been in default in the performance of its

contract with this commission (section A, Rule Ill, id.). lt is not insolvent (section c, id.).

And' there is no evidence nor was its contract terminated for the commission of an
unlawful act: (a) corrupt, fraudulent, collusive and coercive practices; (b) drawing up or
using forged documents; and, (c) Using adulterated materials, means
engaging.

or methods or

6.02 Neither is there a ground

to

terminate the subject contract for

convenience (section B, id.). No condition exist that makes the project implementation

economically, financially

or

technically impractical and/or unnecessary such

as

fortuitous events or change in the law and national government policies.

7. Movant OTC Paper Supply has already invested a significant amount of capital in order to deliver the goods covered by the subject contract and will suffer serious financial losses
termination thereof will not be set aside by this Honorable Commission.
7.01 Underthe terms ofthe Notice ofAward, Annex "B', hereof, movant OTC
is

if

the

obliged to deliver thirty percent (30%) of the 1,815,000 ballot secrecy folder on April 7, 20L0, another thirty percent (30%) on April 14, 2010 and the remaining forty percent
(40%) on April 21,2010.

7.02 On account of the proximity of the delivery dates of the goods covered by

the contract, movant OTC Paper Supply, under the pain of being penalize for delayed delivery under Section 68 of the lmplementing Rules and Regul'ations, proceeded to
procure the needed raw materials and to manufacture the aforesaid goods.

7.03 Significantly, the ballot secrecy folders covered by the subject contract

was specifically designed for the purpose of the election

alternative market.

and

has therefore no

8. Even assuming ex gratia argumenti

that there exist grounds to terminate the subject

contract for convenience, movant OTC Paper Supply should still be compensated for the sum of money

that it has invested for th e manufactured and ready for delivery ballot secrecy folder

8.0L Under Section 8, Rule lV of the cuidelines for Termination of Contract, id.,

"the goods that have been performed or a ready for delivery within thirty (30) calendar days after the Supplier's receipt

of

Notice to Terminate shall be accepted by the

Procuring Entity at the contract terms and prices.

WHEREFORE, OTC Paper

Supply respectfully prays

of this Honorable

Commission

that it

reconsider Resolution 88L4 by proceeding with the contract for the supply and delivery of 1,814,000 ballot secrecy folder. Alternatively, OTC Paper Supply respectfully prays that it be compensated for the
sum of money that it has used for the manufacture of ready for delivery ballot secrecy folders. Quezon City for Manila. April 8, 2010.

VALERIO & ASSOCIATES LAW OFFICES Counsel for OTC PAPER SUPPLY
Unit 17-F Petron Plaza Building

358 Buendia Avenue, Makati City

ICTO M. VALERIO, JR
wyers' Roll No. 34966
PTR NO. 2087843 1.04.10 IBP LRN NO. 01668
ROLL OF ATTORNEY'S NO. 34966

MCLE COMPLTANCE

NO. -0003502 9.28.07

NOTICE OF HEARING

TO THE CLERK

COMMISSION ON ELECTIONS INTRAMUROS MANILA

Please take notice Commission

that the undersigned counsel will submit the foregoing motion to the
Tuesday, April 13, 2010 at 9:00 a.m.

for its reconsideration and approval on

or

soon

thereafter as counsel or matter may be heard.

M. VAIERIO,
I

JR.

VERIFICATION

RE PU

BLIC OF THE PH ILIP PIN ES)

Quezon

City
K.

l, WILLY

YOUNG, of legal age, Filipino and

with address at 451 M. De

La Cruz St., Sta.

euiteria,

Caloocan City after having been duly sworn to in accordance with law depose and state:

1.

am the proprietor of OTC Paper Supply.

2. 3.

I have cause

the preparation and filing of the foregoing motion for reconsideration.

I have read the said motion and the facts alleged therein are true and correct based on my personal knowledge and official records.

4.

The photocopies of the documents attached the motion are faithful reproduction of their
origina ls.

FURTHER AFFIANT SAYETH NAUGHT.

SUBSCRIBED AND SWORN TO

before me, affiant exhib

to me his PHILIPPINE PASSPORT

No.

XX1239859 issued on May 22, 2008 at Manila, Philip

ooc.

ruo. /01
NO,

; ; ;

PAGE

BOOKNO.

JJ ?J

l:i. 'i/

d61-l

SER|ES OF 2010.

Ufftil llere.$ irrr J1, tor 0 PTtl ltlo. "li {i2'r26i} r -05-10

ililoili*'!"s !l'"t!l i\$'

3282',7

REPUBLIC OF THE PHILIPPINES) QUEZON C|TY, METRO MANTLA) S.S.

CERTIFICATION

l, WILLY K. YOUNG, of legal age, Filipino, after having been duly sworn to in accordance

with law, hereby depose and state, that in compliance with Section 5, Rule 7 of the 1997 Rules

of civil Procedure, I have not commenced any other action or proceeding involving the same
issues in the Supreme court, the court of Appeals, or any other tribunal or agency. That to the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court

of Appeals, or any other tribunal or agency. That if I should thereafter learn that a similar action

or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or
any other tribunal or agency, I undertake to report that fact within five (5) days therefrom with

this Honorable Court.

SUBSCRIBED AND SWORN

to before me this 8thday of April 20j.0 at euezon City, Metro

Manila, affiant exhibited to me his Philippine Passport No. xx1239859 issued by DFA-Manila on 22 May 2008 to expire on 22 May

2013,

containing their photographs and

whom

have identified through competent evidence of his identities as defined byrthe ZOO4 Rules on

Notarial Practice and who also personally presented to me the foregoing/document and signed it in my presence and avowed under penalty of law to the whol

Doc.
Page

No.

102;
22;

No.

Book

No.

91;

Series of 2010.

i\o. 3!6?tI6B A?t0rney's Roll l{o.

Dccernbtr 31, ?0t0

r-ssti
32827

I I

Republic of the Philippines COMMISSION OT{ ELECTIOI,{S lntramu ros, Manila

NOTICF OF AWAR.D
16 March 2010
PAPER sr..!FPLV 451 m. Dela Cruz, Street, Sta Quiteria, Kalookan City
GREETINGS:

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orc

I
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Resolution No, 8795 promulgated 15 M ardh 20 10, you Pursuant Pu rsuant ito Comelec Resoluti lhe Conrmission AWARDS to your firm the coiltract for the are hereby notified that the Commis hereby printing and delivery of the following:
I

QUANTITY

ARTICI-ES/SPECIFICATION
,
1

qNrr
P6ICE
P380100/piece
I

1,815,000 pieces

Top Layer: Size: 9.5 inches (width) x 28 inches (length) i 'Thickness: 0.65 mm . Material: Polypropylene Sheet Color: Royal Blue Printing: One Color Print Comelec Logo and "Ballpt Secrecy Fold er"
I I I

Ballot Secrecy

Folder

Expandable Spine: Size:2 inches (width) x 28 inches (lenqth) Thickness: 0.2 mm Material : Polypropylene Sheet Color: Black Joint: Ultrasonic welded with the Top tayer and joint by rivets with the Bottom layer Bottom Layer: Size:9.5 inches (width) x 28 inches (length)

bank drafl/guarantee @nfirrned bry a universal or cornrnercjal bank payable to Commission on El,edixts- YoUr failure b pd SE rEqdsfE perfofinarc sflrity shall be ground for tfie annulneni of thb asd-

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