Re: Keng Hua Paper Products

EN BANC

[A.M. No. 12-9-4-SC. December 4, 2012.]

RE: PROTEST AGAINST BAC-GS FOR DISQUALIFYING KENG HUA PAPER PRODUCTS CO., INC. FROM PARTICIPATING IN THE PROCUREMENT OF BASIC OFFICE SUPPLIES.

NOTICE

Sirs/Mesdames :

Please take notice that the Court en banc issued a Resolution dated December 4, 2012, which reads as follows:

"A.M. No. 12-9-4-SC (RE: PROTEST AGAINST BAC-GS FOR DISQUALIFYING KENG HUA PAPER PRODUCTS CO., INC. FROM PARTICIPATING IN THE PROCUREMENT OF BASIC OFFICE SUPPLIES). —

The discretion to accept or reject a bid and award contracts is vested in the Government agencies entrusted with that function. The discretion given to the authorities on this matter is of such wide latitude that the Courts will not interfere therewith, unless it is apparent that it is used as a shield to a fraudulent award. 1

For resolution is the protest lodged by Keng Hua Paper Products Co., Inc. (Keng Hua) against its disqualification by the Bids and Awards Committee for Goods and Services (BAC-GS) from the procurement of the Basic Office Supplies for the Lower Courts for CY 2012.

Antecedent Facts

In an Invitation to Bid published in The Philippine Star, the Court, through the BAC-GS, invited interested bidders for the procurement of the basic office supplies of the different lower courts for the year 2012. The procurement was broken down into lots: (1) Lot A for the National Capital Judicial Region (NCJR) with an approved budget of P30,839,400.98; (2) Lot B for Luzon (Regions 1 to 5) with an approved budget of P46,825,293.21; (3) Lot C for Visayas (Regions 6 to 8) 2 with an approved budget of P16,228,910.17; and (4) Lot D for Mindanao (Regions 9 to 12) with an approved budget of P16,131,792.78. 3 Keng Hua was among those who bought the Bid Documents for Ten Thousand Pesos (P10,000.00). IaEACT

During the pre-bid conference on May 15, 2012, the interested bidders, including Keng Hua, raised several concerns on the delivery schedule, distribution list and storage of the procured supplies, among others. 4 Inasmuch as the BAC-GS did not have the available documents needed to clarify the bidders' queries, another pre-bid conference was scheduled to June 5, 2012, which was officially relayed through Bid Bulletin No. 1 dated May 28, 2012. 5 The bid bulletin was signed by BAC-GS Secretary Atty. Shirley T.M. Literal. 6 After the 2nd pre-bid conference, the BAC-GS issued Bid Bulletin No. 2 dated June 22, 2012, amending certain provisions in the Bid Documents 7 in response to the queries and concerns of the bidders. The opening of the bids was also re-scheduled to July 3, 2012, with deadline of submission of bids set at 1:30 p.m. and the opening at 2:00 p.m. Bid Bulletin No. 2 was, again, signed by Atty. Literal and was personally received by Keng Hua's representative, Gina Vallente. 8

On the opening of bids on July 3, 2012, Keng Hua brought to the attention of the BAC-GS that the representative of Triplex, another interested bidder, submitted its bid at 1:34 p.m. The BAC-GS, nevertheless, resolved to accept the Bid Documents of Triplex Enterprises "due to the inclement weather". 9 For Lot A, Keng Hua was among those who submitted a bid; however, it was subsequently disqualified for its failure to fill up the specifics for the "Offered Brand" column laid out in the Financial Bid Form. 10 Keng Hua manifested at once its intention to file a motion for reconsideration of its disqualification. 11 BOC's Trading Co. was then declared as the Lowest Calculated Bid (LCB), subject to post-qualification inspection. For Lots B, C and D, Keng Hua was again disqualified for the same reason, that is, it failed to fill up the "Offered Brand" column in the Financial Bid Form. 12 The LCB for Lot B was Triplex Enterprises. In Lot C, since the two bidders, Center Point Sales and Trading, Inc. and Keng Hua, were both disqualified, the BAC-GS resolved to declare a failure of bidding. The same declaration of failure of bidding was made for Lot D. 13

On July 5, 2012, Keng Hua filed its letter asking for reconsideration, arguing that its disqualification was without legal and factual basis, to wit: SHIcDT

1. The information as to the brand of the goods subject of the procurement is a technical matter and should have been included in the first envelope which is the Eligibility and Technical Component. The second envelope which refers to the Financial Component, should contain only the financial matters of the bidding.

2. The undersigned has already passed the Eligibility and Technical Component of the bidding process and therefore, he should no longer be disqualified on technicality especially during the opening of the Financial Component of the bid.

3. Sec. 18 of R.A. 9184 particularly states that "Specification[s] for the [P]rocurement of Goods shall be based on relevant characteristics and/or performance requirements.Reference to [b]rand names shall not be allowed." The undersigned, therefore, humbly submits that the inclusion of the column "Brand Offered" in the Financial Bid Form, has no basis in law and should be disregarded.

4. Even assuming that the SC-BAC-GS may legally require the prospective bidders to indicate the brand of the products, it should have been included in the Eligibility and Technical Component and not in the Financial Component.

5. Also, the inclusion of the "Brand Offered" column is clearly immaterial considering that already included in the bid documents is a List of Preferred Brand indicating the [preferred] brands of the SC-BAC-GS. It is also pointed out that in the Technical Bid Form submitted by the undersigned, he indicated therein his compliance with the preferred brands as appearing on the List of Preferred Brands.

6. Finally, under Sec. 22.5.1 of the Implementing Rules and Regulations of R.A. 9184, Bid Bulletins are required to be duly issued by the BAC Chairman. Bid Bulletin No. 2, however, was issued by SC-BAC-GS Secretary[,] which is, with all due respect, contrary to the said provision. 14

The BAC-GS denied Keng Hua's prayer for reconsideration in its letter dated July 24, 2012. 15

Hence, this protest, which was filed with Assistant Court Administrator (ACA) Thelma C. Bahia, BAC-GS Chairperson. ACA Bahia then endorsed the protest to Senior Associate Justice Antonio T. Carpio, who referred the same to the Office of the Chief Attorney (OCAT) for recommendation. After the OCAT filed its recommendation, the Court directed the BAC-GS to file its Comment on the Protest. 16 ETHCDS

Memorandum of the Office of the

In essence, it is the OCAT's position that Section 18 of Republic Act (R.A.) No. 9184 provides an absolute prohibition on reference to brand names. Clause 15 of the Instruction to Bidders (ITB) does not require any information in the Financial Bid Form other than those relating to price or financial matters; hence, the column "Offered Brand" put in by the BAC-GS in the Financial Bid Form should be deemed as not written and therefore, cannot be a ground for disqualifying Keng Hua. The OCAT also agrees with Keng Hua's view that the bid bulletin should have been signed by the BAC-GS Chairperson, in accordance with Section 14 of R.A. No. 9184 and its Revised Implementing Rules and Regulations (IRR). And inasmuch as the bid bulletin was signed by the BAC-GS Secretary, it was not properly executed and consequently invalid. The OCAT also observes that the BAC-GS Secretary actually holding the position is a co-terminous employee of the Court and not a permanent employee as required by law.

The OCAT also states that it was brought to the attention of the BAC-GS on August 15, 2012 that Keng Hua is a firm that has been suspended for one (1) year from participating in the procurement activities of the DBM Procurement Service, to commence on June 17, 2011 when Keng Hua received the notice. Thus, at the time Keng Hua started participating in the Court's procurement project on May 15, 2012, 17 the suspension order against Keng Hua was still in effect. Nevertheless, it managed to delay the process by asking for clarifications, which resulted in the holding of another pre-bid conference and eventually, the re-scheduling of the opening of the bids. Thus, when it submitted its bid on July 3, 2012, it was able to state in its Omnibus Sworn Statement that it was not barred from participating in any government procurement activity. The OCAT considers Keng Hua's conduct as a "documented attempt by a bidder to unduly influence the outcome of the bidding in his favor", which is a ground for suspension and disqualification of a bidder under Section 69.1 (h) of the Revised IRR.

The OCAT thereby recommended that the Chief Justice, as Head of the Procuring Entity (HoPE): (1) declare that no contract shall be awarded in the procurement project; (2) note the letter-protest of Keng Hua; (3) direct the Court Administrator to immediately facilitate the procurement of basic office supplies for the lower courts through the DBM Procurement Service; and (4) remind the BAC-GS to exercise caution in the conduct of procurement processes. aECTcA

Memorandum of the Bids and

The BAC-GS, for its part, posits that requiring the "Offered Brand" in the Financial Bid Form was made in the honest belief that it would be advantageous and beneficial to the Court and its end-users. The BAC-GS believes that it is not precluded from requiring other documents or information in the Financial Bid Form and the column "Offered Brand" is a valid requirement as it is related to the bid price. It admitted that a list of preferred brand was provided to the bidders but asserts that it contained several brands, which were taken from samples submitted by the bidders themselves and which were found acceptable by the lower court employees. The BAC-GS also claims that Keng Hua is estopped from questioning the validity of the bid bulletin inasmuch as it already acquiesced thereto and even submitted the documents required under said bid bulletin. It points out that the different bids and awards committees of the Court were all given by the Chief Justice the discretion to appoint their respective secretaries and given the confidentiality of procurement matters, the Chairperson, not only of the BAC-GS but also of the BAC-Halls of Justice, designated members of their staff, who are co-terminous employees, as Secretaries.

On the issue of the delayed submission of Triplex's bid, the BAC-GS asserts that due to the inclement weather experienced on July 3, 2012, it resolved to waive the deadline set at 1:30 p.m. in order to afford other bidders the opportunity to submit their bids. Lastly, the BAC-GS shares the observation of the OCAT that, after having been apprised by the DBM-Procurement Service of Keng Hua's suspension, it realized that Keng Hua's acts were mere delaying tactics in order for it to qualify in the procurement process.

Thus, the BAC-GS recommended that: (1) Keng Hua's protest be denied; (2) Keng Hua be held guilty of violation of Sec. 69.1 (h) of the Revised IRR for its documented attempt to unduly influence the outcome of the bidding in its favor and be suspended from participating in the Court's procurement activities for one (1) year; (3) Keng Hua's bid securities be forfeited in favor of the Court; (4) the contracts for Lots 1 and 2 (should be Lots A and B) be awarded to the qualified bidders who submitted the lowest calculated and responsive bids; and (5) the procurement of basic supplies for Lots 3 and 4 (should be Lots C and D), which have been declared as failed biddings, be effected through the Procurement Service.

Resolution of the Court

Reference to brand names

R.A. No. 9184 or the Government Procurement Reform Act, as reiterated in its Revised IRR, provides: IAEcaH

SEC. 18. Reference to Brand Names. — Specifications for the Procurement of Goods shall be based on relevant characteristics and/or performance requirements. Reference to brand names shall not be allowed.

The prohibition against referring to brand names is mandatory. This is clear from the language of the proviso — "[r]eference to brand names shall not be allowed." The rule of statutory construction is that negative words and phrases are to be regarded as mandatory. 18 The use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced. 19 Such prohibition extends to "tailor-fitting," which, as described by the Government Procurement Policy Board (GPPB) in NPM 002-2009 issued on 2009-01-09, is the "inclusion in the bid documents of such detailed design and technical descriptions that leave the procuring entity no other option but to procure from a particular brand or supplier." 20 The underlying policy behind this prohibition is clear, i.e., to prevent undue preference on certain goods/products and ensure fair and equal competition among the bidders. Moreover, the prohibition pertains to the procuring entity, 21 as can be drawn from the fact that the provision is included in Article VI of R.A. No. 9184 and Rule VI of its Revised IRR, both on the preparation of bidding documents, a task that is undertaken by the procuring entity. 22

Nevertheless, while the prohibition is mandatory, it is directed at the Technical Specifications 23 as contained in the Bid Documents to be prepared by a procuring entity. 24 Thus, both R.A. 9184 and its Revised IRR state: "[s]pecifications for the Procurement of Goods shall be based on relevant characteristics and/or performance requirements," followed by the provision: "[r]eference to brand names shall not be allowed." In addition, Section VII on Technical Specifications of the 2010 Philippine Bidding Documents (PBD) on Procurement of Goods, which provides for the uniform format and minimum standards of Bid Documents of the different government agencies, 25 specifically states that:

Reference to brand name and catalogue number should be avoided as far as possible; where unavoidable they should always be followed by the words "or at least equivalent." References to brand names cannot be used when the Funding Source is the GOP.

The Manual of Procedures for the Procurement of Goods and Services also provides that the Bid Documents must contain the Technical Specifications, "which must not contain any reference to brand names." 26 DCAEcS

What is unmistakable, therefore, is that the prohibition on reference to brand names relates to the Technical Specifications of the Bid Documents to be prepared by a procuring entity. Consequently, there was no violation of the prohibition committed by the BAC-GS when it included the column "Offered Brand" in the Financial Bid Form, which is under Section VIII (Bidding Forms), a separate section in the Bid Documents.

The Court also agrees with the BAC-GS that it is not precluded from including in the Financial Bid Form a listing of a bidder's offered brand. For one, the Court, as the procuring entity, is not specifying any brand to be procured; rather, what is being required from the bidders is a list of possible brands to be supplied in case it is awarded the contract. For another, additional data may in fact be required from the bidders, as sanctioned in the PBD's Instruction to Bidders, to wit:

13. Documents Comprising the Bid: Financial Component

13.1. Unless otherwise stated in the BDS, the financial component of the bid shall contain the following:

(a) Financial Bid Form, which includes bid prices and the bill of quantities and the applicable Price Schedules, in accordance with ITB Clauses 15.1 and 15.4; (Emphasis ours)

While the inclusion of the column "Offered Brand" in the Financial Bid Form appears to be inappropriate, as it is not pertinent to any financial component of a bid, nonetheless, the mistaken appreciation by the BAC-GS of the foregoing provision does not render the procurement process irregular such that it should be set aside. It should also be stressed that Keng Hua had all the opportunity to raise the issue of such inclusion during the two pre-bid conferences that the BAC-GS conducted on May 15, 2012 and June 5, 2012 but it did not. Raising this issue now is obviously a subterfuge in order to have the outcome of the procurement project shelved or resolved in its favor, which the Court will not tolerate. It devolved upon Keng Hua to carefully examine all of the Bid Documents and its failure to observe such responsibility shall be at its risk. 27 And as stated at the outset, "[t]he discretion given to the authorities on this matter is of such wide latitude that the Courts will not interfere therewith, unless it is apparent that it is used as a shield to a fraudulent award," 28 which is clearly absent in the procurement activity undertaken by the BAC-GS. DHaEAS

Accordingly, since Keng Hua failed to completely fill up the items required in the Financial Bid Form, the BAC-GS, using the mandatory non-discretionary "pass/fail" criterion, 29 did not err in resolving that Keng Hua is further disqualified from the procurement activity. That it has been declared as an eligible bidder during the opening of the first envelope containing the eligibility and technical components does not automatically qualify its bid inasmuch as the BAC-GS still has to evaluate the financial component contained in the second envelope. It is only after complete evaluation of the eligibility, technical and financial components that a bid may be considered as having "passed." This is in accord with Section 30.2, Rule IX (Bid Evaluation) of the Revised IRR, where —

. . . In case one or more of the requirements in the second envelope of a particular bid is missing, incomplete or patently insufficient, and/or if the submitted total bid price exceeds the ABC, the BAC shall rate the bid concerned as "failed". Only bids that are determined to contain all the bid requirements for both components shall be rated "passed" and shall immediately be considered for evaluation and comparison. (Emphasis ours)

The BAC-GS Secretariat and

Section 14.2 of the Revised IRR provides for the qualifications of a bids and awards committee's Secretariat, viz.:

14.2 The head of the Secretariat in central offices shall be at least a fifth ranking permanent employee or, if not available, a permanent official of the next lower rank; or shall be at least a third ranking permanent employee in bureaus, regional offices and sub-regional/district offices, or if not available, a permanent employee of the next lower rank. In addition to integrity, Heads of Procuring Entities shall consider procurement proficiency as a factor in designating the head of the Secretariat and Procurement Unit.(a) (Emphasis ours)

The foregoing provision, however, presupposes the standard organizational structure, plantilla positions and staffing pattern in the civil service. 30 The case of the Judiciary poses a different matter. The highly confidential nature of its tasks and responsibilities is such that most of the appointments of its officials and employees are of non-career 31 and co-terminous status, that is, those issued to an employee whose entrance and continuity in the service is based on the trust and confidence of the appointing authority or that which is subject to his pleasure, or co-existent with his tenure. 32 Thus, the realities on the ground must be recognized. It would be extremely difficult, if not impractical, to designate a career employee to the Secretariat. It is even more difficult to designate a career official considering that all third level positions have already been classified by the Court as highly technical or policy-determining. 33 Aside from this, the sensitive and confidential nature of the procurement process in the Judiciary requires that personnel tasked with the functions of the Secretariat should enjoy the trust and confidence, not only of the BAC Chairperson but also of the Head of the Procuring Entity. And as stated by the BAC-GS, "[d]esignating coterminous employees as Secretary is necessarily inevitable in the Court, as such is the nature of positions not only in the office of the ACAs (Assistant Court Administrator) but also in the higher offices of the Supreme Court Justices, and the Deputy Court Administrators (DCAs)." These are presumably the reasons why the Chief Justices, as Heads of the Procuring Entity, deem it more expedient to maintain the practice of delegating to the BAC Chairpersons the discretion to appoint the heads of their respective Secretariats.

As regards the bid bulletins issued by the BAC-GS Secretariat, Section 22.5.1 of the Revised IRR, states:

22.5.1. Requests for clarification(s) on any part of the Bidding Documents or for an interpretation must be in writing and submitted to the BAC of the procuring entity concerned at least ten (10) calendar days before the deadline set for the submission and receipt of bids. The BAC shall respond to the said request by issuing a Supplemental/Bid Bulletin, duly signed by the BAC chairman, to be made available to all those who have properly secured the Bidding Documents, at least seven (7) calendar days before the deadline for the submission and receipt of bids.(a) HaTAEc

The bid bulletin issued under said provision is made upon the instance of a bidder, in writing and submitted to the BAC, who in turn shall respond to the request. The purpose of the requirement in Section 22.5.1 is obviously to ensure that the clarifications contained in the bid bulletin were official and made upon proper determination by the BAC of the issues to be resolved as these will form part of the Bid Documents. In the case of the bid bulletin issued by the BAC-GS, it was made pursuant to the oral requests for clarifications made by the bidders during the pre-bid conference and which were resolved by the BAC-GS itself in the presence of the bidders during the pre-bid conference. The bid bulletin was thus a mere formal notification to the bidders of the clarifications made during the pre-bid conference and the purpose of the requirement had been adequately met.

Other Matters

Both the OCAT and the BAC-GS recommend the suspension of Keng Hua from participating in the Court's procurement activities. This is easier said than done. While the Revised IRR sanctions the imposition of the administrative penalty of suspension where there is "any documented attempt by a bidder to unduly influence the outcome of the bidding in his favor," 34 the procedure set in the Uniform Guidelines for Blacklisting of Manufacturers, Suppliers, Contractors and Consultants 35 issued by the GPPB must be complied with.

Conclusion

In sum, the Court finds that Keng Hua's protest should be denied for lack of merit. The Court, however, cautions not only the BAC-GS, but all the other Bids and Awards Committees (BACs) of the Court as well, to exercise utmost prudence in performing its duties and responsibilities. The Court is well aware of the practicalities that have to be recognized — the procurement laws have set stringent procedures such that it has almost divested a procuring entity the leeway to choose quality over cost and the Court, in fact, had first-hand experience on this, being the end-user and recipient of procured substandard office supplies, e.g., ballpoint pens that easily skip or blot, pencil erasers that stain when used, poor quality of copy papers and even carbon papers that can be used only once. But such practicalities cannot be used as leverage for a disregard of the procurement laws. The Court's hands are tied, so to speak, and the BACs, being the procuring agent of the Court, should avoid any conduct that would impart even the slightest hint of partiality, excess or disregard of the law. prLL

. . . The essence of public bidding is, after all, an opportunity for fair competition, and a fair basis for the precise comparison of bids. In common parlance, public bidding aims to "level the playing field." That means each bidder must bid under the same conditions; and be subject to the same guidelines, requirements and limitations, so that the best offer or lowest bid may be determined, all other things being equal. 36

The Court, therefore, exhorts the BAC-GS to discontinue its practice of requiring an "Offered Brand" list in the Bid Documents or giving out its own list of preferred brands during the procurement process. The different BACs of the Court are also enjoined to strictly complywith R.A. No. 9184 and its Revised IRR.

WHEREFORE, the Court resolves to:

(1) DENY the protest of Keng Hua Paper Products Co., Inc.;

(2) APPROVE the award of the contract in the procurement of Basic Office Supplies for the Lower Courts for CY 2012 under Lots A and B to the Lowest Calculated and Responsive Bid;

(3) DIRECT the procurement of Basic Office Supplies for the Lower Courts for CY 2012 for Lots C and D through the DBM-Procurement Service;

(4) DIRECT the BAC-GS to commence proceedings for the suspension of Keng Hua Paper Products Co., Inc. in accordance with the Uniform Guidelines for Blacklisting of Manufacturers, Suppliers, Contractors and Consultants; TcHCIS

(5) DIRECT the SC Office of Administrative Services, in consultation with the different Bids and Awards Committee, to study the feasibility of creating of a Central BAC Secretariat for the Supreme Court; and

(6) DIRECT the SC Procurement Planning Committee to study the practicality and cost-efficiency of a long-term procurement of the Court's basic office supplies from the DBM-Procurement Service and to submit its findings and recommendation to the Court within thirty (30) days from receipt of this Resolution.

Let copies of this Resolution be furnished to the different Bids and Awards Committee of the Court for information and guidance." Sereno, C.J., on leave. (adv18)

Very truly yours,

(SGD.) ENRIQUETA E. VIDALClerk of Court

 

Footnotes

1.First United Constructors Corporation v. Poro Point Management Corporation (PPMC), G.R. No. 178799, January 19, 2009, 576 SCRA 311, 321-322; Italics ours.

2.Erroneously published as Regions 1 to 6.

3.Invitation to Bid, p. A67 and A 68, Volume 1 of 2, Records for Lot A.

4.Minutes of May 15, 2012 Pre-Bid Conference, p. A81, id.

5.Page A86, id.

6.Id.

7.Amendments pertained to the provisions on Eligible Bidders, Technical Documents, Technical Specifications, Financial Bid Form and the Omnibus Sworn Statement (pp. A91-A92, id.).

8.Page A91, id.

9.Minutes of the Bid Opening, p. A101, id.

10.Page A95, id.

11.Id.

12.Id. at A102-103.

13.Id.

14.Annex "1," Protest.

15.Annex "2," Protest.

16.Resolution dated September 25, 2012.

17.The date when the first pre-bid conference was conducted by the BAC-GS.

18.See Francisco v. CA, 313 Phil. 241, 257 (1995).

19.Id.

20.http://www.gppb.gov.ph/opinions/view_nonpolicy.php?id=522, viewed on November 20, 2012.

21.R.A. No. 9184, Section 5 (o) defines a procuring entity as "any branch, department, office, agency, or instrumentality of the government, including state universities and colleges, government-owned and/or -controlled corporations, government financial institutions, and local government units procuring Goods, Consulting Services and Infrastructure Projects."

22.R.A. No. 9184, Section 17, Article VI and Revised IRR, Section 17.1, Rule VI state, among others, that the Bidding Documents shall be prepared by the Procuring Entity following the standard forms and manuals prescribed by the GPPB.

23.Under the Manual of Procedures for the Procurement of Goods and Services, "'technical specifications' refers to the physical description of the goods or services, as well as the Procuring Entity's requirements in terms of the functional, performance, environmental interface and design standard requirements to be met by the goods to be manufactured or supplied, or the services to be rendered. The technical specifications must include the testing parameters for goods, when such testing is required in the contract."

24.See R.A. 9184, Section 17 (e) and Revised IRR, Section 17.1 (g).

25.R.A. No. 9184, Section 17 states: "The Bidding Documents shall be prepared by the Procuring Entity following the standard forms and manuals prescribed by the GPPB."

26.Page 15.

27.Section II. Instruction to Bidders, No. 6.2, Philippine Bidding Documents on Procurement of Goods (2010 ed.).

28.See Note 1.

29.Revised IRR, Rule IX, Sec. 30.1.

30.Under Presidential Decree No. 807 or the Civil Service Code of the Philippines, positions in the civil service are classified into career service (Section 5) and non-career service (Section 6). Section 7, meanwhile, classifies positions in the career service, as follows:

 1. The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;

 2. The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and

 3. The third level shall cover positions in the Career Executive Service.

31.The Civil Service Code, Section 9 characterizes non-career service by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.

32.Omnibus Rules Implementing Book V of the Revised Administrative Code of 1987, Section 14.

33.A.M. No. 05-9-29-SC, In the Matter of Classifying as Highly Technical and/or Policy-determining the Third Level Positions Below that of Chief Justice and Associate Justices in the Supreme Court, including those in the Philippine Judicial Academy and the Judicial and Bar Council, and for other purposes, dated September 27, 2005.

34.Section 69.1 (h).

35.GPPB Resolution No. 09-2004 dated August 20, 2004.

36.Information Technology Foundation of the Phils. v. COMELEC, 464 Phil. 173, 248 (2004).