The Practice of Civil Engineering and RA 9266 _Architecture Act

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The Practice of Civil Engineering and RA 9266 _Architecture Act Powered By Docstoc
					Update on the Revised IRR of National Building Code
Angel L. Lazaro III, Ph.D.
Chairman, Board of Civil Engineering Professional Regulation Commission

1

Short History
• The National Building Code, Presidential
Decree 1096, was approved in the 1970’s • PD 1096 has not been amended • PD 1096 calls for the issuance by the Secretary of the DPWH of Implementing Rules and Regulations (IRR) • The current IRR is composed of DPWH Orders issued through the years • For the past few years, the DPWH has been preparing a consolidated revised IRR
2

Short History
• The DPWH formed a Board of Consultants
(BOC) composed of various stakeholders to prepare a draft of the Revised IRR • The BOC included representatives from Accredited Professional Organizations, including PICE, UAP, PSSE, etc. • After the BOC submitted their draft, the final version of the Revised IRR was prepared by the DPWH National Building Code Review Committee

3

DPWH National Building Code Review Committee
• Chairman: Raul C. Asis, Civil Engineer, Assistant
Secretary • Members:
– Antonio V. Molano, Jr., Civil Engineer, Director IV, Bureau of Research and Standards – Nestor V. Agustin, Civil Engineer, Director IV, PMO-Special Buildings – Gilberto S. Reyes, Civil Engineer, OIC, Director IV, Bureau of Design – Walter R. Ocampo, Civil Engineer, Director III, Bureau of Construction – Camilo G. Foronda, Lawyer, Director III, Legal Service – Emmanuel P. Cuntapay, Architect V, Bureau of Design
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Short History
• The Revised IRR contains Technical
Provisions (Types of Construction, Fire Requirements, Classification and General Requirements, Light and Ventilation, Sanitation, Building Projections, etc.) • The Revised IRR also includes Administrative Provisions (Administration and Enforcement, Permits and Inspection, etc.) • Technical Provisions are alright, but Administrative Provisions are problematic
5

Issues Resulting from Revised IRR
• Who is the Registered Professional
Authorized to Prepare, Sign and Seal Building Plans (Civil Engineer or Architect)? • Which is the Proper Body that Appoints Building Officials (City/Municipal Mayors or DPWH Secretary)?

6

Who is the Registered Professional Authorized to Prepare, Sign and Seal Building Designs, Plans and Specifications (Civil Engineer or Architect)?
7

Revised IRR Violates RA 544 (The Civil Engineering Law)
• Certain Administrative Provisions of the
Revised IRR violate Republic Act 544 (The Civil Engineering Law) • Specifically, the Revised IRR violates Sections 2 and 23 of Republic Act 544 • The Revised IRR will prevent licensed Civil Engineers from practicing Civil Engineering
8

How Does the Revised IRR prevent Civil Engineers from Practicing Civil Engineering?
• Original IRR
– Section 302 of P.D. 1096 and Section 3.2 of Ministry Order 57 (Original IRR) requires the submittal to the Building Official of five (5) sets of plans and specifications prepared, signed and sealed by a duly licensed architect or civil engineer, in case of architectural and structural plans. – Section 302.3 of Revised IRR requires the submittal to the Building Official of five (5) sets of plans, specifications and documents prepared, signed and sealed over the printed name of the duly licensed and registered professionals: • Architect, in case of architectural documents; in case of

• Revised IRR

– Therefore, the definitions of “Architectural Documents” (Section 302.4) and “Civil/Structural Documents” (Section 302.5) are very important
9

•

architectural interior/interior design documents, either an architect or interior designer may sign; Civil Engineer, in case of civil/structural documents;

Definition of “Architectural Documents” in the Revised IRR (Section 302.4)
• Architectural Plans/Drawings
– – – – – – – – – – – Vicinity Map/Location Plan Site Development Plan Perspective Floor Plans Elevations Sections Reflected Ceiling Plan Details, in the form of plans, elevations/sections Schedule of Doors and Windows Schedule of Finishes Details of other major architectural elements

• • • •

Architectural Interiors/Interior Design Plans and Specific Locations of Accessibility Facilities Fire Safety Documents Other Related Documents
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Definition of Civil/Structural Documents in the Revised IRR (Section 302.5)

• Site Development Plan • Structural Plans • Structural Analysis and Design • Boring and Load Tests • Seismic Analysis • Other related documents
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Revised IRR will Prevent Civil Engineers from Preparing, Signing and Sealing Building Plans
• Revised IRR is correct in identifying the
documents listed in Section 302.4 of the Revised IRR as “Architectural Documents” Revised IRR will give the exclusive right to Architects to prepare, sign and seal designs, plans and specifications enumerated in Section 302.4 as Architectural Documents

•

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Revised IRR will Prevent Civil Engineers from Preparing, Signing and Sealing Building Plans
• Revised IRR will limit Civil Engineers to
preparing, signing and sealing designs, plans and specifications enumerated in Section 302.5 as “Civil Engineering/Structural Documents” Revised IRR will make it impossible to obtain Building Permits for buildings whose designs, plans and specifications are prepared, signed and sealed by Civil Engineers
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•

Understanding RA 544
• Sections 2 and 23 of Republic Act No. 544
(The Civil Engineering Law) clearly include the preparation, signing and sealing of designs, plans and specifications of buildings in the scope of practice of Civil Engineering

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Section 2 of RA 544 Includes Preparation, Signing and Sealing of Building Plans and Specifications in Scope of Civil Engineering

• Section 2, RA 544 – “The practice of civil

engineering within the meaning and intent of this Act shall embrace services in the form of consultation, design, preparation of plans, specifications, estimates, erection, installation and supervision of construction of streets, bridges, highways, railroads, airports and hangars, portworks, canals, river and shore improvements, lighthouses, and dry docks; buildings, fixed structures for irrigation, flood protection, drainage, water supply and sewerage works, demolition of permanent structures, and tunnels.”
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Section 2 of RA 544 Includes Preparation, Signing and Sealing of Building Plans and Specifications in Scope of Civil Engineering • Civil Engineering Services • Civil Engineering Structures
– Consultation

– Design – Preparation of Plans – Preparation of Specifications
– – – – –

Preparation of Estimates Erection Installation Supervision of Construction Demolition of Permanent Structures

– – – – – – – – – –

– Buildings
• • • • •

Streets Bridges Highways Railroads Airports and Hangars Portworks Canals River and Shore Improvements Lighthouses Drydocks

– Fixed Structures for
Irrigation Flood Protection Drainage Water Supply Sewerage Works
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– Tunnels

Section 23 of RA 544 Allows Civil Engineers to Prepare, Sign and Seal Building Designs, Plans and Specifications
• Section 23, RA 544 – “It shall be unlawful for any
person to order or otherwise cause the construction, reconstruction, or alteration of any building or structure intended for public gathering or assembly such as theaters, cinematographs, stadia, churches or structures of like nature, and any other engineering structures mentioned in section two of this Act unless the designs, plans and specifications of the same have been prepared under the responsible charge of, and signed and sealed by a registered civil engineer, and unless the construction, reconstruction and/or alteration thereof are executed under the responsible charge and direct supervision of a Civil Engineer.”
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Principle of Overlap Among Professions
• Doctors, Midwives, Nurses, Dentists, • • • • •
Nutritionists and Dietitians, Optometrists Lawyers, Accountants, Criminologists, Customs Brokers Mechanical Engineers, Electrical Engineers, Electronics and Communications Engineers Architects, Interior Designers, Landscape Architects Civil Engineers, Architects, Sanitary Engineers, Geodetic Engineers, Master Plumbers, Agricultural Engineers, Environmental Planners Many Others
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Overlap Among Professions (Some Examples)
• The act of delivering a baby could
constitute the practice of medicine, midwifery or nursing, depending on which professional carries out the delivery • The act of preparing an opinion on a question of tax law could constitute the practice of law or accounting, depending on which professional is the author of the opinion or document
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Overlap Among Professions (Some Examples) • The act of preparing designs, plans and

specifications for the interior of a building could constitute the practice of architecture or interior design, depending on which professional prepared the documents • The act of preparing designs, plans and specifications for a building could constitute the practice of architecture or civil engineering, depending on which professional prepared the documents 20

Revised IRR Recognizes Principle of Overlap of Professions in Case of Architecture and Interior Design
• Section 302.3 of Revised IRR requires the
submittal to the Building Official of five (5) sets of plans, specifications and documents prepared, signed and sealed over the printed name of the duly licensed and registered professionals:
– Architect, in case of architectural documents; in case of architectural interior/interior design documents, either an architect or interior designer may sign;

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Revised IRR Should Also Recognize Overlap of Professions in Case of Civil Engineering and Architecture
• Invoking the principle of Overlap among
Professions, the documents enumerated in Section 302.4 are “Building Documents” and not generically “Architectural Documents” The documents enumerated in Section 302.4 are “Architectural Documents” only if prepared, signed and sealed by an Architect The documents enumerated in Section 302.4 are “Civil Engineering Documents” if they are prepared, signed and sealed by a Civil Engineer
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•
•

Correct List of Civil Engineering Documents
• Section 302.5 – Civil Engineering Documents
– Vicinity Map/Location Plan – Building Plans

• • • • • • • • •

Perspective Floor Plans Elevations Sections Reflected Ceiling Plan Details, in the form of plans, elevations/sections Schedule of Doors and Windows Schedule of Finishes Structural Plans

– – – – –

Site Development Plan Structural Analysis and Design Boring and Load Tests Seismic Analysis Other related documents
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Preparation, Signing and Sealing of Building Plans are Part and Have Always been Part of the Practice of Civil Engineering

• Civil Engineers have been preparing, signing and

•

•

sealing building plans not only for the past 50 years (RA 544) but for thousands of years even before the professions or Architecture and Civil Engineering were regulated The preparation, signing and sealing of building plans are part of the practice of Civil Engineering by law, history and tradition This right of Civil Engineers to prepare, sign and seal building plans has never been legally challenged, up to the present
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Preparation, Signing and Sealing of Building Plans are Part and Have Always been Part of the Practice of Civil Engineering

• The purpose of regulatory laws is to protect the •
public and not any particular profession There has never been any case filed or legal judgment rendered that this practice of Civil Engineers has had any adverse effect to any person or has been harmful to public welfare The only parties affected by this practice are Architects who are forced to compete with Civil Engineers in the open market

•

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Injunction was Needed
• P.D. 1096 provides that Implementing Rules and •
Regulations shall be formulated by the DPWH Secretary Then DPWH Secretary Soriquez, a Civil Engineer, has signed the revised IRR P.D. 1096 provides that the IRR shall take effect 15 days after their publication once a week for three consecutive weeks in a newspaper of general circulation The Revised IRR was published in the Manila Standard on April 1, 8 and 15, 2005
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•

•

Injunction was Needed
• Without an injunction, the IRR would have been

• •
• •

in effect on April 30, 2005 During the last week of April, 2005, the PICE and the PSSE requested the DPWH Secretary to defer the implementation of the Revised IRR, to avoid a legal confrontation In reply, DPWH informed the PICE and PSSE that the Secretary does not have the authority to defer implementation of the Revised IRR In fact, during that meeting, the PICE and PSSE were advised to file for an injunction Therefore, PICE and PSSE had no choice but to file for an injunction

27

PICE has obtained Preliminary Injunction from Manila RTC
• PICE obtained 72 hour Temporary Restraining
•
Order (TRO) against implementation of Revised IRR during the first week of May, 2005 PICE obtained 20-day TRO during the second week of May, 2005 PICE obtained Preliminary Injunction May 24, 2005 The Preliminary Injunction has no expiry date which means that implementation of the Revised IRR is suspended until the issues raised by PICE are resolved PSSE also obtained its own Preliminary Injunction
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• •
•

Preliminary Injunction Recognizes Issue Raised by PICE
• Dispositive paragraph of the Preliminary Injunction:
Both the petitioner and respondent are one that one cannot be deprived of the right to work and the right to make a living because these rights are property rights. It is not disputed that prior to the issuance of the questioned IRR, petitioners, as civil engineers, were exercising the subject rights pursuant to R.A. 544 and P.D. 1096 as well as Ministry Order 57 which the subject IRR would now remove from them. It is a legal truism that “the spring cannot rise higher than its source”. At this stage of the proceedings, it would appear that the new IRR goes beyond the laws it seeks to implement. Wherefore, the application is granted, and a writ of preliminary injunction issue, enjoining the herein defendant, his agents, representatives and/or assigns from implementing and carrying out the questioned provisions of the subject.
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Implementing the National Building Code
• The Preliminary Injunction obtained by the PICE •
covers the sections involving the preparation, signing and sealing of “Building/Architectural Plans. Therefore, Building Officials have to accept “Building/Architectural Plans” prepared, signed and sealed by either an Architect or Civil Engineer, as provided in the Original IRR:

– Section 302 of P.D. 1096 and Section 3.2 of Ministry Order 57 (Original IRR) requires the submittal to the Building Official of five (5) sets of plans and specifications prepared, signed and sealed by a duly licensed architect or civil engineer, in case of architectural and structural plans.
30

Implementing the National Building Code
• Sections of the National Building Code not
affected by the PICE and PSSE Injunctions are implementable Section 201 of the Revised IRR vests the administration and enforcement of the National Building Code in the DPWH Secretary Section 203(6) of the Revised IRR empowers the DPWH Secretary to appoint Building Officials If a Civil Engineer cannot prepare, sign and seal Building Plans, he is technically less qualified to be a Building Official than an Architect Section 202 of the Revised IRR names the National Building Code Development Office (NCBDO) as the technical staff of the DPWH Secretary 31

•
• •

•

Implementing the National Building Code
• The DPWH Secretary has appointed an architect
• •
(Emmanuel Cuntapay) as Executive Director of the NCBDO The Executive Director of the NCBDO screens and recommends prospective Building Officials to the DPWH Secretary Architect Cuntapay is on record as favoring the appointment of Architects as Building Officials Architect Cuntapay is on record that the preparation, signing and sealing of Building/ Architectural Plans is exclusive to Architects

•

32

DPWH Answer to Preliminary Injunction
• DPWH, through the Solicitor General, submitted •
its answer on June 17, 2005 DPWH states that Sections 2 and 23 of RA 544 do not state in clear and unequivocal terms that civil engineers can prepare, sign and seal architectural documents DPWH states that it is only under Section 302 of PD 1096 and Section 3.2 of Ministry Order 57 that the right of civil engineers to prepare, sign and seal architectural plans was recognized and expressly granted
33

•

DPWH Answer to Preliminary Injunction
• DPWH states that Section 302 of PD 1096 and
Section 3.2 of Ministry Order 57 have been repealed by Sections 20, 25 and 29 of RA 9266, the “Architecture Act of 2004” DPWH states that even if Sections 2 and 23 of RA 544 include the preparation of architectural documents, said provisions have likewise been repealed by RA 9266

•

34

DPWH Answer to Preliminary Injunction
• DPWH states that RA 9266 was approved on
March 17, 2004 while RA 544, PD 1096 and Ministry Order 57 were approved in 1950, 1977 and 1978, respectively DPWH argues that in case of irreconcilable conflict between two laws, the later enactment must prevail DPWH argues that RA 9266 has repealed the other laws as evidenced by Section 46 of RA 9266
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•
•

DPWH Answer to Preliminary Injunction
• DPWH states that PD 1096 is a general law as it
deals with the practice of various professions, while RA 9266 is a special law because it deals exclusively with the practice of architecture DPWH argues that it is a finely-imbedded principle that a special provision of law prevails over a general one DPWH argues that the Revised IRR did not amend nor supplant the laws promulgated by the legislature

•
•

36

DPWH Answer to Preliminary Injunction
• DPWH states that the Revised IRR is consistent
• •
and in harmony with the pertinent provisions of RA 9266 DPWH argues that it is erroneous to claim that the Revised IRR is null and void because it gives architects the exclusive right to prepare, sign and seal architectural documents DPWH argues that it is the legislature by virtue of RA 9266 which gives duly licensed architects the exclusive right to prepare, sign and seal architectural documents
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DWPH Answer Relies on RA 9266
• Sections 20, 25 and 29 of RA 9266 has repealed
• • •
Section 302 of PD 1096 and Section 3.2 of Ministry Order 57 RA 9266 has repealed Sections 2 and 23 of RA 544 Revised IRR is consistent and in harmony with the pertinent provisions of RA 9266 RA 9266 gives duly licensed architects the exclusive right to prepare, sign and seal architectural documents

38

Understanding RA 9266
• Section 20. “Seal, Issuance and Use of Seal. – A duly licensed architect shall affix the seal

prescribed by the Board bearing the registrant’s name, registration number and the title “Architect” on all architectural plans, drawings, specifications and all other contract documents prepared by or under his/her direct supervision.”

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Understanding RA 9266
• Section 20(2) – “No officer or employee of this
Republic, chartered cities, provinces and municipalities, now or hereafter charged with the enforcement of laws, ordinances or regulations relating to the construction or alteration of buildings, shall accept or approve any architectural plans or specifications which have not been prepared and submitted in full accord with all the provisions of this Act; nor shall any payments be approved by any officer for any work, the plans and specifications for which have not been so prepared and signed and sealed by the author”
40

Understanding RA 9266
• Section 20(5) – “All architectural plans, designs, drawings and architectural documents relative to the construction of a

building shall bear the seal and signature only of an architect registered and licensed under this Act together with his/her professional identification number and the date of its expiration”

41

• Section 25 – “No person shall practice

Understanding RA 9266

architecture in this country, or engage in preparing architectural plans, specifications or preliminary data for the erection or alteration of any building located within the boundaries of this country, or use the title “Architect”, or display the word “Architect” together with another word, or use any title, sign, card, advertisement, or other devise to indicate such person practices or offers to practice architecture, or is an architect, unless such person shall have received from the Board a Certificate of Registration and be issued a Professional Identification Card.”
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Understanding RA 9266
• Section 29 – “Prohibition in the Practice of
Architecture and Penal Clause. – Any person who shall practice or offer to practice architecture in the Philippines without being registered/ licensed and who are not holders of temporary or special permits in accordance with the provisions of this Act … shall be guilty of misdemeanor and charged in court by the Commission…”

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Why DPWH Answer is Wrong
• The DPWH presumes that the PICE case is
that civil engineers can prepare, sign and seal “Architectural Plans and Documents” • The PICE case is: Civil Engineers should not be prevented from practicing Civil Engineering which includes preparing, signing and sealing “Building Plans and Documents”

44

Why DPWH Answer is Wrong
• That RA 9266 has repealed PD 1096 and
Ministry Order No. 57 is debatable because of the legal principle that one law does not repeal another if there is a way of reconciling the laws concerned • Invoking the principle of Overlap of Professions will reconcile the laws • Even if PD 1096 has been repealed, this is immaterial because it is RA 544 (not PD 1096) that gives Civil Engineers the right to prepare Building Plans
45

Why DPWH Position is Wrong
• RA 9266 has not repealed Sections 2 and
23 of RA 544 because these sections do not state that civil engineers can prepare, sign and seal “Architectural Plans” • Sections 2 and 23 of RA 544 state that civil engineers can prepare, sign and seal “Building Plans”, not “Architectural Plans” • Therefore, there is no inconsistency with RA 9266 and there is nothing to repeal
46

Why DPWH Answer is Wrong
• Sections 2 and 23 of RA 544 clearly states
that the preparation, signing and sealing of “Building Plans” are within the scope of practice of civil engineering • Therefore, the PICE case hinges on the proper interpretation of the term “Building Plans” • The term “Building Plans” occur in both RA 544 and RA 544 (the old Architecture Law) • Therefore, prior to RA 9266 the term “Building Plans” in RA 545 included all plans of buildings 47

Why DPWH Answer is Wrong
• Architects claim that the term “Building
Plans” in RA 544 means “Structural Plans” • Why will the term “Building Plans” mean all plans of buildings when applied to Architecture and something else when applied to Civil Engineering • If “Building Plans” mean “Structural Plans”, why is that not what is stated? • Why have civil engineers have been preparing, signing and sealing complete “Building Plans” for thousands of years, without any legal challenge? 48

Why DPWH Answer is Wrong
• The DPWH answer is totally dependent on
the premise that RA 9266 is the law relevant to this case • This will only be true if the case is about the practice of architecture • The PICE position it that this case is about the practice of civil engineering and not the practice of architecture • Therefore, RA 9266 is not relevant, and the applicable law is RA 544
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RA 9266 Cannot Justify the Revised IRR
• Section 43, RA 9266 – “This Act shall not be
construed to affect or prevent the practice of any other legally recognized profession.”
– RA 9266 does not affect the scope of practice of Civil Engineering

• Section 46 of RA 9266 - “Republic Act No. 545, as

amended by Republic Act No. 1581, is hereby repealed and all other laws, orders and regulations or resolutions or part/s thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly”
– No provision of RA 544 is inconsistent with RA 9266, because RA 544 does not authorize civil engineers to prepare, sign and seal architectural plans and documents, and therefore there is nothing to repeal

50

DPWH Answer to Preliminary Injunction (Part 2) • DPWH acknowledges that the direct

consequence of the revised IRR is to deprive more than a hundred thousand civil engineers of their right to earn a living which has been vested upon them for more than fifty years now • DPWH cites the principle of “dura lex sed lex (The law is harsh but the law is still the law)
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DPWH Answer to Preliminary Injunction (Part 2)
• DPWH states that laws are adopted to make
sure that the plans specifications and other documents to be submitted for the issuance of a building permit are prepared, signed and sealed by competent professionals who possess the required skills, knowledge and expertise on the matter to safeguard life, health, property and public welfare

52

Architects Do Not have the Exclusive Right to Prepare, Sign and Seal Building Plans • Civil Engineers have prepared, signed and sealed

• • •

•

building plans for thousands of years, with distinction There has never been a legal challenge, much less a decision, questioning this right of civil engineers There has never been a single case, much less a decision, that civil engineers are a threat to life, health, property or public welfare It is an insult to the civil engineering profession to question the competence of civil engineers to prepare, sign and seal building plans It is an insult to the civil engineering profession to accuse civil engineers of being threats to life, health, property or public welfare
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What Civil Engineers Must Do
• Follow the following Guidelines in the
preparation, signing and sealing of “Building Plans”:
– Label all building plans, specifications and other documents “Civil Engineering” before signing and sealing them – Place only the title “Civil Engineer” (and nothing else) under your name and signature when signing plans, specifications and other documents
54

What Civil Engineers Must Do
• Continue preparing, signing and sealing
Civil Engineering (Building) plans • Never sign and seal architectural plans • Always sign as a Civil Engineer • Inform fellow Civil Engineers of PICE position on revised IRR • Inform as many individuals and sectors of PICE position
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What Civil Engineers Must Do
• Lobby with Local Government Officials,
National Agencies and other Government Entities for the implementation of RA 544 • Lobby with DPWH for the appointment of a Civil Engineer as Executive Director of the NBCDO • Monitor violations against the Preliminary Injunction • Take appropriate action against such violations • Inform PICE of such violations
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Conclusion
• The right of Architects to prepare, sign and
seal “Architectural Plans”, as provided for in RA 9266, should be recognized and respected • The right of Civil Engineers to prepare, sign and seal “Building Plans”, as provided for in RA 544, should be recognized and respected • The Preliminary Injunction obtained by the PICE should be respected and implementation of Section 302 of the Revised IRR suspended
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Which is the Proper Body that Appoints Building Officials (City/Municipal Mayors or DPWH Secretary)?
58

Powers and Functions of the DPWH Secretary
• Section 203 of PD 1096 provides:
1. 2. Formulate policies, plans, standards and guidelines on building design, construction, use, occupancy and maintenance, in accordance with this Code. Issue and promulgate rules and regulations to implement the provisions of this Code and ensure compliance with policies, plans, standards and guidelines formulated under paragraph 1 of this section. Evaluate, review, approve and/or take final action on changes and/or amendments to existing Referral Codes as well as on the incorporation of other referral codes which are not yet expressly made part of this Code. Prescribe and fix the amount of fees and other charges that the Building Official shall collect in connection with the performance of regulatory functions.
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3.

4.

Powers and Functions of the DPWH Secretary
• The power to appoint Building Officials is not •
included in the generic powers of the DPWH Secretary. Section 205 of PD 1096 indirectly addresses this issue and provides:
“Due to the exigencies of the service, the Secretary may designate incumbent Public Works District Engineers, City Engineers and Municipal Engineers to act as Building Officials in their respective areas of jurisdiction. The designation made by the Secretary under this Section shall continue until regular positions of Building Official are provided or unless sooner terminated for causes provided by law or decree.”
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Powers and Functions of the DPWH Secretary
• The DPWH Secretary does not have the power
• •
to appoint Building Officials, and only has the power to designate (“…the Secretary may designate…”). The DPWH Secretary can designate a Building Official only when there is an exigency in the service (“Due to exigencies in the service…”). Therefore, the DPWH Secretary cannot designate a Building Official in case where a duly appointed official is already acting as Building Official because in this case there is no “Exigency in the service”.
61

Powers and Functions of the DPWH Secretary
• The DPWH Secretary may designate only certain
incumbent officials as Building Officials (“…the Secretary may designate Public Works District Engineers, City Engineers and Municipal Engineers to act as Building Officials in their respective areas of jurisdiction”). All of the incumbent officials enumerated in PD 1096 are required by law to be Registered and Licensed Civil Engineers, and therefore the DPWH Secretary may not designate a Building Official who is not a Civil Engineer

•

62

Powers and Functions of the DPWH Secretary
• The designation by the DPWH Secretary has a
limited duration (“The designation made by the Secretary shall continue until regular positions of Building Official are provided or unless terminated for causes provided by law or decree”). Therefore, in cases where a Building Official has been designated by the DPWH Secretary, such designation shall cease when a regular position of Building Official is provided.
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•

Powers and Functions of the DPWH Secretary
1. 2.

• Section 206 of Revised IRR Increased the

Powers and Functions of the DPWH Secretary from Four to Six:

3.

Formulate policies, plans, standards and guidelines on building design, construction, use, occupancy and maintenance, in accordance with this Code. Issue and promulgate rules and regulations to implement the provisions of this Code and ensure compliance with policies, plans, standards and guidelines formulated under paragraph 1 of this section.

4. 5.

Exercise appellate jurisdiction over the decisions and orders of the Building Official. The order or decision of the Secretary shall be final and executory subject only to review by the Office of the President of the Republic.
Evaluate, review, approve and/or take final action on changes and/or amendments to existing Referral Codes as well as on the incorporation of other referral codes which are not yet expressly made part of this Code. Prescribe and fix the amount of fees and other charges that the Building Official shall collect in connection with the performance of regulatory functions.

6.

Appoint a Building Official, separate and distinct from the Office of the City/Municipal Engineers in all Cities and Municipalities.

64

Powers and Functions of the DPWH Secretary
• Section 203(6) directly contradicts the provisions
of PD 1096, wherein the DPWH Secretary’s powers do not include the appointment of Building Officials but is limited only to the designation of Building Officials, and only under certain conditions. The IRR cannot contain provisions not provided for in the law it is implementing, and this is therefore a case of “the spring rising above its source”.

•

65

Powers and Functions of the City/Municipal Mayor
• Section 444(b)(1)(v) of RA 7160 (Local
Government Code of 1991) provides:
“The Municipal Mayor shall exercise general supervision and control over all programs, projects, services, and activities of the municipal government and in this connection shall appoint all officials and employees whose salaries and wages are wholly or mainly paid out of municipal funds and whose appointments are not otherwise provided for in this Code, as well as those he may be authorized by law to appoint.”

• Section 455(b)(1)(v) of RA 7160 contains a
similar provision applicable to Cities.

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Powers and Functions of the City/Municipal Mayor
• Section 477 of RA 7160 further provides:
“No person shall be appointed engineer unless he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, and a licensed civil engineer. He must have acquired experience in the practice of his profession for at least five (5) years in the case of the provincial or city engineer, and three (3) years in the case of the municipal engineer. The appointment of an engineer shall be mandatory for the provincial, city and municipal governments. The city and municipal engineer shall also act as the local building official.”
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Powers and Functions of the City/Municipal Mayor
• Provincial, City and Municipal engineers have to
•
be licensed Civil Engineers. Power of City or Municipal Mayor to appoint City/Municipal Engineers is clear and specific. That City/Municipal Engineers shall act as Building Officials is clear and specific. What needs to be clarified is whether this provision has the effect of providing “regular positions of Building Officials” as envisioned in Section 205 of PD 1096.

•
•

68

Summary
• PD 1096 contains no provision giving the DPWH
•
Secretary the power to appoint Building Officials. The DPWH Secretary only has the power to designate Building Officials. The designation of Building Officials by the DPWH Secretary is conditional and has a limited duration. RA 7160 gives City/Municipal Mayors the power to appoint City/Municipal Engineers who shall act as Building Officials.
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•
•

Summary
• If Section 477 of RA 7160 has the effect of
providing regular positions of Building Officials, then the DPWH Secretary does not have the power to designate Building Officials in Cities/Municipalities with duly appointed City/Municipal Engineers. In any case, the DPWH Secretary does not have the power to designate a Building Official in cities/municipalities with duly appointed City/Municipal Engineers because there is no “Exigency in the service”.
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•