DOJ Opinion No. 119, s. 1992

DOJ OPINION NO. 119 , s. 1992 September 8, 1992 Secretary Jose P. de Jesus Department of Public Works and Highways Manila Sir : In connection with the order of the Office of the Ombudsman directing the Department of Public Works and Highways (DPWH) "to cease and desist" from implementing a consulting agreement (including payment due the contractor thereunder) for the construction supervision of Metro Manila Flyovers for the reason that the consultant is a corporation, and therefore, the agreement is violative of R.A. No. 544 (Civil Engineering Law), as amended by R.A. No. 1584, Entitled "An Act To Repeal and Replace Section 24 of R.A. No. 544, Entitled "An Act To Regulate The Practice of Civil Engineering In The Philippines"), you request opinion on whether the Guidelines on the Procurement of Consulting Services for Government Projects issued by the National Economic and Development Authority (NEDA) under its Board Resolution No. 23, series of 1987, pursuant to E.O. No. 164 (1987) have modified said R.A. No. 544, such that a corporation can engage (now) in consulting services in the field of engineering like design and construction. We regret we are constrained by established precedents to decline rendition of the desired opinion. The resolution of your query will necessarily involve a review of the ruling/official actuation of the Ombudsman, an independent governmental office over which the Secretary of Justice possesses neither supervisory nor revisory authority (DOJ Op. No. 99, s. 1975; No. 204, s. 1989; No. 164, s. 1991). By explicit provision of the constitution, the Office of the Ombudsman has the power to, "investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears, office or agency, when such act or omission appears to illegal, unjust, improper or inefficient" (Sec. 13, Art. XI). Moreover, the issue raised involves mixed questions of fact and law. we are not in a position to determine if the DPWH consultant for the construction supervision of the Metro Manila Flyovers which, as you state is a corporation, satisfies the requirements of the NEDA for the procurement of consulting services for government projects, viz: prcd "i At least sixty percent (60%) of both the subscribed and paid-up capital must be owned by citizens of the Philippines. "ii The corporation must be registered with and authorized by the Securities and Exchange Commission to engage in consulting services. "iii When the types and fields of consulting services in which the corporation wishes to engage involve the practice of professions regulated by law, the following conditions shall be observed: "(1) One hundred percent (100%) or both the subscribed and paid-up capital must be owned by registered professionals authorized by the appropriate regulatory body to practice those professions or allied professions; and "(2) The principal officers of the corporation must be registered professionals authorized by the appropriate regulatory body to practice those professions or allied professions (2.2.4.1.[d]). By settled policy, this Department refrains from giving advice/opinion on questions of fact or mixed questions of fact and law, as the Secretary of Justice is empowered to rule only on questions of law (DOJ Op. No. 192, s. 1982; No. 36, s. 1991). Finally, the query is justiciable in nature as it affects the substantive rights of private persons/entities. The opinion of the Secretary of Justice, being advisory on nature is not binding upon the party/parties who may be affected thereby, and who may, in all probability, contest our opinion before the appropriate courts (DOJ Op. No. 361, s. 1984; No. 311, s. 1986). prcd Very truly yours, (SGD.) FRANKLIN M. DRILON Secretary