Requesting Entity: Don Mariano Marcos Memorial State University
Issues Concern: Interpretation of the Term Procuring Entity's Engineer
1. Whether or not the "Procuring Entity's Engineer" (PEE) referred to in the GPM on Infrastructure Projects pertain to any authorized representative of the procuring entity who may not be an engineer
It appears that the problem lies in the seeming incongruence between the provisions of the PBD and the GPM on Infrastructure Projects. The PBD, under Clause 1.23 thereof, defines "Procuring Entity's Representative" (PER) as the Head of the Procuring Entity or his duly authorized representative, identified in the Special Conditions of the Contract, who shall be responsible for supervising the execution of the Works and administering the contract. The GPM, on the other hand, mentions the PEE as the personnel in charge of performing contract implementation-related functions, such as inspecting and testing of project materials and computing and recording of dayworks. A more detailed review and comparison of the functions and responsibilities of the PER and the PEE reveals that the former is lodged with a more general and comprehensive function and authority than the latter.
In this regard, we are of the view that the term PEE in the GPM does not refer to any authorized representative of the procuring entity. The term PER, however, allows the designation of personnel other than the PEE. Although it is logical to designate an engineer to administer and supervise the implementation of infrastructure projects, neither the GPM nor the PBD impose upon the discretion of the Head of the Procuring Entity to identify his representative. In addition, we cannot subscribe to the interpretation that only an engineer should be designated as PER in contracts for infrastructure projects considering that not every agency has its own engineer. At any rate, Clause 22.2 of the PBD allows the PER to delegate any of his duties and responsibilities to other people, which may pertain to the delegation to the PEE of the performance of the duties mentioned in the GPM.
2. Whether or not the University Engineer is free from any accountability and responsibility on any structural failure on the infrastructure project.
As provided in Section 62.2.3 of the Implementing Rules and Regulations Part A of RA 9184, in cases where structural defects and/or failures arise during the warranty period, the persons/parties liable are the contractor, consultant(s), PER/project manager/construction managers and supervisors, third parties, and/or users. It will be observed that the University Engineer or the PEE is not included in the enumeration.
It may be inferred from the foregoing that the University Engineer or the PEE does not automatically become accountable from any structural defect/failure of an infrastructure project of the procuring entity, unless the University Engineer or the PEE is the PER, project manager, construction manager, or construction supervisor and it is found that the structural defects/failures are due to his/her willful intervention in altering the designs and other specifications; negligence or omission in not approving or acting on proposed changes to noted defects or deficiencies in the design and/or specifications and the use of substandard construction materials in the project.