Salient Points of Discussion provided by the Case
Assailed provision in the IRR imposing a nationality requirement in the Philippine construction industry
Rule 3 CONTRACTOR’S LICENSE
Section 3.1 License Types. Two types of licenses are hereby instituted and designated as follows:
a. The Regular License
“Regular License” means a license of the type issued to a domestic construction firm which shall authorise the licensee to engage in construction contracting within the field and scope of his license classification(s) for as long as the license validity is maintained through annual renewal; unless renewal is denied or the license is suspended, cancelled or revoked for cause(s).
The Regular License shall be reserved for and issued only to constructor-firms of Filipino sole proprietorship, or partnership/corporation with at least sixty percent Filipino equity participation and duly organised and existing under and by virtue of the laws of the Philippines. [Emphasis supplied]
b. The Special License
“Special License” means a license of the type issued to a joint venture, a consortium, a foreign constructor or a project owner which shall authorise the licensee to engage only in the construction of a single specific undertaking/project. In case the licensee is a foreign firm, the license authorisation shall be further subject to condition(s) as may have been imposed by the proper Philippine government authority in the grant of the privilege for him to so engage in construction contracting in the Philippines. Annual renewal shall be required for as the undertaking/project is in progress, but shall be restricted to only as many times as necessary for completion of the same.
The following can qualify only for the Special License:
(ba) a joint venture, consortium or any such similar association organised for a single specific undertaking/project
(bb) a foreign firm legally allowed by the proper Philippine government authority to undertake construction activities in the Philippines
(bc) a project owner undertaking by himself, sans the service of a constructor, the construction of a project intended for sale, lease, commercial/industrial use or any other income generating purpose.
PCAB went beyond the prescribed classifications under RA No.4566 and created a nationality-based license types
Section 15 of RA No.4566 provides for an enumeration of the statutorily mandated classifications for the contracting business i.e. General Engineering Contracting, General Building Contracting and Specialty Contracting. The classification provided by law defined the areas of specialisation as may be recognised by industry practice. The Supreme Court ruled that PCAB exceed the confines of the delegating statute when it created the nationality-based license types under Section 3.1. The law does not authorise PCAB to set an equity limit for a contractor’s license.
The argument that the classification is pursuant to the Constitutional mandate to limit to Filipino citizens the practice of all professions is misplaced
PCAB insists that the regulation was formed consistent with the Constitutional mandate to limit to Filipino citizens the practice of all professions. The ‘profession’ under the Constitution refers to the practice of natural persons of a certain field in which they are trained, certified, and licensed. Being a licensed contractor does not automatically qualify within the ambit of the Constitution as a ‘profession’ per se. A contractor under RA No.4566 does not refer to a specific practice of profession i.e. architecture, medicine, accountancy and the like. The licensing of contractors cannot be considered as an act of engaging in the practice of a specific profession, but rather an act of engaging in the business of contracting/construction. The license required under RA No.4566 is for purposes of engaging in the business of contracting under the terms of the said act for a fiscal year or a certain period/project, and not for the purpose of practicing a particular profession.
Construction industry is not one which the Constitution has reserved exclusively for Filipinos
The Court finds that the construction industry is not one which the Constitution has reserved exclusively for Filipinos. Neither do the laws enacted by Congress show any indication that foreigners are proscribed from entering into the same projects as Filipinos in the field of construction.
Introduction of foreign equity into a construction firm with regular license is not a ground for license invalidation
Further, the provision which ipso facto invalidates the contractor’s license of a construction firm holding a regular license in case 30% or more foreign equity is introduced to it has also been declared void by the Supreme Court.
Classification made by Section 3.1 is merely a licensing regulation
Justice Leonen registered his dissent explaining that the classification under Sec. 3.1. does not create a nationality requirement. Sec. 31 is not an absolute restriction against foreign contractors, but is merely a licensing regulation. Foreign contractors are not prohibited from engaging in the construction industry, Sec.3.1 simply classified the types of licenses that may be applied for, which will then determine the documentary requirements, term of license, and the number of projects a license may undertake. The classification appears to have only meant to facilitate the grant of licenses. Justice Leonen emphasises that the classification only regulates the application of licenses to allow PCAB to address licensing concerns. The additional requirements imposed on foreign contractors aid PCAB in its duty to monitor and regulate the industry.