2015-10-08

NPM No. 028-2015

Requesting Entity: Schools of Division of Aurora, Department of Education Region III

Issues Concern: Removal of Bids and Awards Committee Members

 

Details

1. Discretionary power of the Head of the Procuring Entity (HOPE) in terms of designation, appointment and removal of BAC members


[A]ssignment to the BAC is in the nature of a designation. The authority to designate necessarily entails the exercise of judgment and discretion.


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The HOPE has the discretion as to who will be designated as BAC members, provided that the same shall possess the qualifications prescribed under Sections 11.2.1, 11.2.2 and 11.2.3 of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184.


The power to designate or appoint also includes the power of removal. In Binamira v. Garucho , the Supreme Court held that "xxx where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority."


However, Section 11.2.6 of the IRR of RA 9184 has provided limitations on the HOPE's exercise of power of removal. It reads: "unless sooner removed for a cause, the members of the BAC shall have a fixed term of one (1) year reckoned from the date of appointment, renewable at the discretion of the Head of the Procuring Entity."


2. Whether it is lawful for the BAC members to be removed within the fixed term of one (1) year from the date of appointment without justifiable cause


[T]he HOPE's power of removal is qualified by the phrase "for a cause" during the fixed term of the BAC member. Accordingly, as the IRR has fixed the term of the BAC member to one (1) year counted from the date of his designation, he may only be removed by the HOPE for valid and justifiable causes during the said period.