REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

________________ DIVISION

WIZARD MANPOWER & ALLIED

SERVICES, INC.,
Petitioner,

-versus- CA-GR-SP NO.___________

PHILIPPINE COMPETITION COMMISSION,

Respondent.
x-----------------------------------------------------------x

PETITION

Petitioner, WIZARD MANPOWER & ALLIED SERVICES, INC.,

by counsel, respectfully states:

NATURE OF PETITION

This is a verified petition for certiorari under Rule 65 of the

Rules of Court, as amended, directed against the Resolution dated
12 July 2021 and the Resolution dated 23 July 2021 of the
Philippine Competition Commission, acting through its
Enforcement Office, in re: CEO-20-0059-FAI for having been issued
with grave abuse of discretion tantamount to lack or excess of
jurisdiction, and there is no plain, speedy and adequate remedy in
the ordinary course of law.

Original copy each of the assailed Resolutions above are hereto

attached as Annexes “A” & “B”, respectively, and are made integral
parts hereof.

THE PARTIES

1
 Petitioner WIZARD MANPOWER & ALLIED SERVICES, INC.,
(respondent “WIZARD”, for brevity) is a domestic corporation
organized and existing under Philippine Laws with principal place of
business at Suites 407-410 CSP Building #815 Quezon Avenue,
Quezon City.

Public respondent PHILIPPINE COMPETITION COMMISSION

(“PCC”, for brevity) is a quasi-judicial agency created by, and
mandated to enforce and implement, the PHILIPPINE
COMPETITION ACT (PCA) or R.A. No. 10667. It has the powers,
among others, to motu propio initiate inquiry and conduct
investigation, through its Enforcement Office, on cases involving
violation of the PCA, its implementing rules or other competition
laws. Public respondent is holding office at 25/F Tower I, Vertis
North Corporate Center, North Avenue, Quezon City, where it may
be served with summons and other processes of this Honorable
Court.

ANTECEDENT FACTS AND PROCEEDINGS

1. Petitioner WIZARD is a legitimate service or job

contracting entity with more than 3,000 employees working in a
wide variety of clientele with branch offices in Cebu, Davao,
Cagayan de Oro, Iloilo, Bacolod and Isabela. It is duly registered as
such in the Department of Labor and Employment (DOLE) pursuant
to DOLE Department Order No 174 series of 2017, as evidenced by
the Certificate of Registration No. NCR-QCFD-78201-030 issued on
22 January 2020 by the DOLE.

Copy of the above Certificate of Registration, attesting the truth

of the foregoing facts, is hereto attached as Annex “C”, and is made
an integral part hereof.

2. Petitioner WIZARD is also a bona-fide member in good

standing of the Philippine Association of Legitimate Service
Contractors (“PALSCON”, for brevity) which is duly organized and
existing under Philippine laws. PALSCON is also registered at
DOLE pursuant to (DOLE) Department Order No. 174 series of
2017. PALSCON, with its more than 300 members to date, is
recognized both locally and internationally as the premiere
organization in the sub-contracting industry.

2
 It may not be amiss to state at this juncture that PALSCON is
a juridical entity endowed with a personality separate and distinct
from its members, such as petitioner WIZARD herein.

2.1 PALSCON and its members are fully committed in the

delivery of job-contracting services in the highest level of
professionalism and ethical standards, and are also firmly
dedicated in the observance of national labor laws and in the
upliftment of labor standards to ensure that Filipino workers get
their just and fair share of their labor. Towards this end, PALSCON
approved and adopted, on 18 March 2013, a Code of Ethics which
serves, inter alia, as the guidelines strictly adhered to, and followed
by, all its members in the conduct of its business.

Copy of PALSCON’s Code of Ethics, attesting the truth of the

foregoing facts, is hereto attached as Annex “D”, and is made an
integral part hereof.

3. In its letter dated 11 December 2020, public respondent,

through its Enforcement Office, notified/informed PALSCON that
there is “an on going (sic) inquiry into the competition in the
local job-contracting industry”, and accordingly, requested a
meeting between public respondent and PALSCON. The letter was
addressed to, and received by, Ms. Rhoda Castro-Caliwara, the
current National President of PALSCON.

Copy of the letter dated 11 December 2020 above, attesting

the truth of the foregoing facts. is hereto attached as Annex “E”,
and is made an integral part hereof.

4. The requested meeting above between public respondent

and PALSCON did materialize, and subsequent thereto, public
respondent, in its letter dated 29 December 2020, requested
PALSCON’s National President additional documentary information
that can assist “in its ongoing inquiry on the local job
contracting industry.”

Copy of the letter dated 29 December 2020 above, attesting

the truth of the foregoing facts, is hereto attached as Annex “F”, and
is made an integral part hereof.

5. In its letter-reply dated 12 January 2021, PALSCON,

through its National President, informed public respondent that
while PALSCON is willing to assist in its ongoing preliminary
inquiry, PALSCON can only provide such documentary information
which are within its control and authority to release. Accordingly,
some but not all the documents requested were provided by

3
PALSCON to public respondent. PALSCON also informed public
respondent that there are no cases filed before its Ethics
Committee; hence, no case records can be provided to public
respondent.

Copy of the letter-reply dated 12 January 2021 above,

attesting the truth of the foregoing facts, is hereto attached as
Annex “G”, and is made an integral part hereof.

6. In its letter dated 21 January 2021, public respondent

again requested additional documentary information from PALSCON,
even as public respondent reiterated in said letter that it is
“currently conducting a motu propio Preliminary Inquiry
regarding the service contracting industry”; and that its
purpose is “to determine if there are reasonable grounds to
conduct a Full Administrative Investigation for violation of
the Philippine Competition Act, its implementing rules or
other competition laws”.

Copy of the letter dated 21 January 2021 of public respondent

to PALSCON, attesting the truth of the foregoing facts, is hereto
attached as Annex “H”, and is made an integral part hereof.

7. Surprised by the tenor of public respondent’s aforesaid

letter, PALSCON, through its National President, immediately sent a
letter dated 25 January 2021 to the former in which PALSCON
reiterated its willingness to cooperate in the purported ongoing
preliminary inquiry; however, PALSCON invoked its right to privacy
and confidentiality as regards certain documentary information
requested by public respondent; and more importantly, its right to
due process, i.e, to be informed of the nature and cause of such
inquiry.

Copy of the letter dated 25 January 2021 above, attesting the

truth of the foregoing facts, is hereto attached as Annex “I”, and is
made an integral part hereof.

8. Meanwhile, on or about 17 May 2021, petitioner WIZARD

received a notice from public respondent, alleging that “in
consideration of the information gathered in the course of the
preliminary inquiry conducted”, petitioner WIZARD “is the
subject of a full administrative investigation for possible
violation of Section 14 of Republic Act No. 10667 or the
Philippine Competition Act (PCA) in relation to Article 2,
Section 3 of the Code of Ethics of the Philippine Association of
Legitimate Service Contractors” (PALSCON). Public respondent

4
also requested the submission of the following documentary
information from petitioner WIZARD, to wit:

“a. Business profile of the service contractor;

b. Organizational structure of the service contractor with the

names of officers;

c. Annual reports from 2018 to present;

d. Copies of certificates of registration with the Department

of Labor and Employment from 2018 to present;

e. Copies of certificate of registration with the Department of

Trade and Industry, Securities and Exchange Commission, and
Cooperative Development Authority as may be applicable;

f. Contact person in case of questions or concerns;

g. Audited Financial Statements (balance sheet, income

statement, statement of cash flows) from 2018 to present;

h. Copies of service agreements pertaining to work

performed from 2018 to present;

i. List of all clients, corresponding geographic location

where services were performed, type of services provided, and
number of employees deployed to the respective principals from
2018 to present xxx.”

Copy of the above letter dated 10 May 2021 of public

respondent to petitioner WIZARD, attesting the truth of the
foregoing facts, is hereto attached as Annex “J”, and is made an
integral party hereof.

9. Considering that it has not been previously subjected to

a preliminary inquiry, petitioner WIZARD was taken aback and put
in a quandary by the notice of public respondent regarding the full
administrative investigation as mentioned above. In view thereof,
petitioner WIZARD, through counsel, forthwith sent a letter dated
25 May 2021 to public respondent in which petitioner requested,
among others, for a copy of the “resolution to proceed, on the basis
of reasonable grounds, to the conduct of a full administrative
investigation”, pursuant to Rule II, Article I, Section 2.6 of the Rules
of Procedure of the PCC, and for a conference with public
respondent, in accordance with Rule II, Article II, Section 2.10 of the
said rules. Subsequently, counsel for petitioner WIZARD filed its
Entry of Appearance with Omnibus Motion dated 1 June 2021 where
the same requests in its earlier letter were reiterated therein.

5
 Copy each of the letter dated 25 May 2021 and Entry of
Appearance with Omnibus Motion dated 1 June 2021 above,
attesting the truth of the foregoing facts, are hereto attached as
Annexes “K” & “L”, respectively, and are made integral parts hereof.

10. The requested conference took place in the afternoon of

11 June 2021, during which, petitioner WIZARD, through its
President/CEO, Atty. Giovanni H. Melgar, specifically inquired from
public respondent, viz: “whether or not petitioner WIZARD was
already subjected to a preliminary inquiry” anent the job contracting
industry; and that, if in the affirmative, petitioner WIZARD
requested from public respondent that it be provided with a copy of
the resolution which is expressly mandated by the aforesaid rules of
procedure of PCC.

10.1 In answer to the aforesaid inquiry and manifestation of

Atty. Melgar, public respondent, through Atty. Jose Manuel S.
Santos, conveniently declared that the preliminary inquiry was
conducted and has been terminated but it was not made clear if the
resolution alluded to above has been issued. The conference was
adjourned and set for continuance to another date.

11. Since petitioner WIZARD is not aware, or has no

knowledge that it has been subjected to a preliminary inquiry, and
there being no resolution which is required to be issued before
proceeding to a full administrative investigation pursuant to the
afore-cited rules of procedure of PCC, an Urgent Motion dated 14
June 2021 was filed by petitioner WIZARD where it alleged the
query and manifestation made during the aforesaid conference; and
accordingly, moved that a preliminary inquiry be first conducted and
terminated by public respondent, and that, in the meanwhile, the
purported full administrative investigation be held in abeyance.

Copy of the aforesaid Urgent Motion dated 14 June 2021,

attesting the truth of foregoing facts, is hereto attached as Annex
“M”, and is made an integral part hereof.

12. In its assailed Resolution dated 12 July 2021 1, public

respondent denied the above Urgent Motion of petitioner WIZARD.
In said Resolution, public respondent remained steadfast that a
preliminary inquiry has been conducted, even as it failed or refused
to issue the resolution mandated by the rules of procedure of PCC.

13. The Urgent Motion for Reconsideration dated 13 July 2021

of the above Resolution filed by petitioner WIZARD was likewise
1
ATTACHED AS ANNEX “A” HEREOF.

6
denied by public respondent in its assailed Resolution dated 23 July
20212. Public respondent adamantly brushed aside the request of
petitioner WIZARD that it be provided with a copy of the resolution
above.

Copy of the Urgent Motion for Reconsideration dated 13 July

2021 is hereto attached as Annex “N”, and is made an integral part
hereof.

14. Hence, this petition.

ISSUE

It is respectfully submitted that the sole issue for the

disposition of this Honorable Court is:

WHETHER OR NOT PUBLIC RESPONDENT

ACTED WITH GRAVE ABUSE OF
DISCRETION TANTAMOUNT TO LACK OR
EXCESS OF JURISDICTION IN ISSUING THE
ASSAILED RESOLUTIONS.

ARGUMENTS

I.

PUBLIC RESPONDENT COMMITTED A

BRAZEN AND UNJUSTIFIABLE BREACH OF
ITS RULES OF PROCEDURE.

II.

PUBLIC RESPONDENT DENIED PETITIONER

OF ITS RIGHT TO DUE PROCESS OF LAW.

III.

THE INVESTIGATION SOUGHT TO BE

CONDUCTED IS DEVOID OF FACTUAL AND
LEGAL BASIS.
2
ATTACHED AS ANNEX “B” HEREOF

7
 DISCUSSION

The arguments, being related and intertwined to each other,

are hereunder discussed in seriatem.

Public respondent committed a

brazen and unjustifiable breach
of its rules of procedure._____

It is well settled that administrative agencies, such as public

respondent herein, possess the power to adopt and promulgate
rules and regulations to implement the statute they are tasked to
enforce. As long the rules and regulations are germane and in
keeping with the objectives and purposes of the law and conforms
to its prescribed standards, they are deemed to have the force and
effect of the law.3 As explained by the Supreme Court in Victoria
Milling Co., Inc. vs. Social Security Commission,4 thus:

“When an administrative agency promulgates

rules and regulations it ‘makes’ a new law with the
force and effect of a valid law. Rules and regulations
when promulgated in pursuance of the procedure or
authority conferred upon administrative agency by law,
partake of the nature of a statute. This is so because
statutes are usually couched in general terms, after
expressing the policy, purposes, objectives, remedies
and sanctions intended by the legislature. The details
and manner of carrying out the law are often times (sic)
left to the administrative agency entrusted with its
enforcement. In this sense, it has been said that rules
and regulations are the product of a delegated power to
create new or additional legal provisions that have the
effect of law.”

As heretofore said, public respondent is conferred with

investigatory power to carry out its mandate under the law (PCA).
The purpose, basis and procedure in conducting investigation
3
PEOPLE VS. MACEREN, 79 SCRA 450 CITING PEOPLE VS. EXCONDE, 101 PHIL. 1125
4
114 PHIL. 555

8
pertaining to violation of the PCA, its implementing rules, or other
competition laws are expressly provided in the rules of procedure
promulgated by public respondent. The rules provide that an
investigation has two (2) stages, first, the preliminary inquiry; and
second, the full administrative investigation.

The pertinent provisions on preliminary inquiry are found in

Rule II, Article I of the Rules of Procedure of the PCC, viz:

“Article I. Preliminary Inquiry.

Section 2.1 Purpose and scope. - The purpose of

fact-finding or preliminary inquiry (‘Preliminary
Inquiry’) is to ascertain whether there are reasonable
grounds to conduct a Full Administrative Investigation
for any violation of the Act, its implementing rules, or
other competition laws. (Underscoring Ours)

xxx xxx xxx”

The public respondent, through its Enforcement Office,

conducts the preliminary inquiry on the basis of a “verified
complaint, referral by a regulatory agency or motu propio directive
from the Commission based on reasonable grounds”. 5 The
preliminary inquiry must be completed within 90 days from its
commencement6, and thereupon, public respondent shall terminate
the same by issuing a resolution, containing its findings and the
subsequent action to be undertaken, which must be on the basis of
reasonable grounds. This is unequivocally provided in Rule II,
Article I, Section 2.6, viz:

“Termination of Preliminary Inquiry. - The

Enforcement Office shall terminate a Preliminary
Inquiry by:

a. ISSUING A RESOLUTION ordering its closure if

no violation or infringement of the Act, its
implementing rules, or other competition laws is
found, subject to any other action the Enforcement
Office may consider proper or necessary under the
circumstances;

5
RULE II, ARTICLE I, SECTION 2.2
6

9
 b. ISSUING A RESOLUTION to close the
Preliminary Inquiry without prejudice, if the facts or
information available at the end of the ninety (90) day
period are insufficient to proceed, on the basis of
reasonable grounds, to the conduct of a Full
Administrative Investigation; or

c. ISSUING A RESOLUTION TO PROCEED, ON THE

BASIS OF REASONABLE GROUNDS, TO THE CONDUCT
OF A FULL ADMINISTRATIVE INVESTIGATION.”
(Underscoring and Emphasis Ours)

Based on the foregoing rules, it is beyond cavil that a

preliminary inquiry must first be conducted and terminated before
public respondent can proceed to conduct a full administrative
investigation. A resolution shall be issued by public respondent,
stating its findings and reasonable grounds to proceed to the second
stage of the investigation, i.e., full administrative investigation. The
purpose of a full administrative investigation is provided in Rule II,
Article II, Section 2.8 of its rules of procedure, viz:

“Article II. Full Administrative Investigation

Section 2.8. Purpose. – A Full Administrative

Investigation is conducted to ascertain whether there is
sufficient basis to charge an Entity for violation of this
Act, its implementing rules or other competition laws.”

In the case at bar, it bears appropriate stressing that the

initial communication received by petitioner WIZARD is the notice
that it is (already) the subject of a full administrative investigation for
possible violation of Article 14 of the PCA in relation to Article 2,
Section 3 of the Code of Ethics of PALSCON. This means that
petitioner WIZARD is instantly the subject of a full administrative
investigation without the requisite preliminary inquiry provided in
the above cited rules. It must be noted that in the case of
PALSCON, public respondent sent initial notices to PALSCON that it
is the subject of an ongoing preliminary inquiry on the job
contracting industry. Here, no notice of preliminary inquiry was
sent by public respondent to petitioner WIZARD.

In view thereof, petitioner WIZARD, in its initial response 7 to

public respondent, requested, inter alia, for the issuance of the
7
PLS. SEE LETTER DATED 25 MAY 2021, ANNEX “K”

10
“resolution to proceed, on the basis of reasonable grounds, to the
conduct of a full administrative investigation” - - - and to provide
herein petitioner WIZARD with a copy thereof. This request was
reiterated during the conference between the parties herein as well
as in petitioner WIZARD’s Urgent Motion and Motion for
Reconsideration [of the Resolution dated 12 July 2021]. To be sure,
in the said motions, petitioner WIZARD specifically averred that - - -

“During the said video conference, Atty.

Giovanni H. Melgar posed several queries, among
which is: whether or not a preliminary inquiry has
been conducted on the aforesaid subject matter. If
one has been conducted, Atty. Melgar respectfully
manifested that this Office should issue and provide
herein movant entity with a copy of the ‘resolution to
proceed, on the basis of reasonable grounds, to the
conduct of a Full Administrative Investigation’ in
accordance with Section 2.6 para. c of the Rules of
Procedure of the Philippine Competition Commission.”
(Underscoring Ours)

However, public respondent, in its challenged Resolutions,

denied petitioner WIZARD’s aforesaid request and adamantly
insisted in subjecting petitioner WIZARD to a full administrative
investigation.

All told, it is respectfully submitted that public respondent’s

refusal, or better still, failure to issue the resolution despite the
repeated request of petitioner WIZARD, is without a doubt a brazen
and inexcusable breach of its own rules of procedure specifically
Rule II, Article I, Section 2.6 para. c thereof, which public respondent
is mandated to observe and enforce. As such, the issuance of the
assailed Resolutions is undeniably tainted with grave abuse of
discretion tantamount to lack or excess of jurisdiction.

Furthermore, the incontrovertible facts and circumstances of

this case strongly suggest that petitioner WIZARD was not
subjected to a preliminary inquiry by public respondent. In the first
place, petitioner WIZARD did not receive any notice of the
preliminary inquiry allegedly conducted by public respondent. What
petitioner WIZARD received is the notice that it is the subject of a
purported full administrative investigation. Secondly, if petitioner
WIZARD was really subjected to a preliminary inquiry, the least that
public respondent could do is to issue the required resolution, and
provide petitioner WIZARD with a copy thereof. The failure or

11
refusal of public respondent to issue the resolution as mandated,
further bolsters petitioner WIZARD’s claim that no preliminary
inquiry was actually conducted by public respondent. As such, by
insisting on proceeding to conduct a full administrative investigation
without a preliminary inquiry is likewise a patent and inexcusable
violation of its own rules of procedure, particularly Rule II, Article I,
Section 2.1 thereof. Once again, this incontrovertibly tainted the
issuance of the questioned Resolutions with grave abuse of
discretion tantamount to lack or excess of jurisdiction.

Grave abuse of discretion means such capricious and

whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or in other words, where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility; and it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law. 8 Apropos to this
case is Freedom From Debt Coalition vs. Energy Regulatory
Commission,9 where the Supreme Court struck down as invalid
the order of the ERC, allowing the provisional increase in power rate
applied by MERALCO, not only because it was issued whimsically,
capriciously or arbitrarily but also, in the terse language of the
Court, viz:

“What makes the challenged Order particularly

repugnant is that it involves a blatant and
inexcusable breach of the very rules which the ERC is
mandated to observe and implement. The violated
provision which is Section 4(e), Rule 3 of the IRR
specifies how the ERC should exercise its power to
issue provisional orders pursuant to Section 44 in
relation to Section of the EPIRA. Since the IRR was
issued pursuant to the EPIRA, Section 4(e) of Rule 3 as
part of the IRR has the force and effect of law and
thus should have been complied with.”

The bare and self-serving allegation of public respondent, that

a “preliminary inquiry has already been completed and among its
findings is that there are reasonable grounds to subject the Movant
(petitioner WIZARD) to a full administrative investigation”,10
undeniably falls short of the mandate required to be undertaken by
public respondent. The rules of PCC above-cited unequivocally

8
BENITO VS. COMELEC, G.R. NO. 134913, 349 SCRA 705 AND NUMEROUS SIMILAR CASES.
9
G.R. NO. 161113, 15 JUNE 2004.
10
PLS. SEE ASSAILED RESOLUTION DATED 12 JULY 2021, ANNEX “A”

12
require public respondent to observe and comply with the condition
sine qua non to the conduct of a full administrative investigation, viz:
(1) a preliminary inquiry must first be conducted; and (2) upon its
completion and termination, a resolution must be issued, stating
the findings and reasonable grounds to proceed to the conduct of a
full administrative investigation. As heretofore discussed, public
respondent miserably failed to comply with its mandate.

Public respondent denied

petitioner of its right to due process.

While public respondent is vested with the quasi-judicial

power to motu propio initiate and conduct inquiry and investigation
on any violation of the law it is tasked to implement and enforce,
nevertheless, the exercise of such power is not unbridled and
unrestrained. The rules of procedure of public respondent,
particularly Rule II, Article I, Section 2.2 thereof, explicitly provides
that preliminary inquiry may be conducted by public respondent
“based on reasonable grounds.” More importantly, since the power
involves the exercise of discretion, the proper exercise of such power
requires the concurrence of two (2) elements: one, jurisdiction must
be acquired by the administrative agency; and two, the observance
of the requirements of due process11.

In Alliance for the Family Foundation, Inc., et al. vs. Hon.

Janet L. Garin,12 the Supreme Court eloquently albeit briefly
explained the due process of law, thus:

“Due process of law has two aspects: substantive

and procedural. In order that a particular act may not
be impugned as violative of the due process clause,
there must be compliance with both the substantive
and procedural requirements thereof. Substantive due
process refers to the intrinsic validity of a law that
interferes with the rights of a person to his property.
Procedural due process on the other hand, means
compliance with the procedures or steps, even periods,
prescribed by the statute, in conformity with the
standards of fair play and without arbitrariness on the
part of those who are called upon to administer it.”
(Underscoring Ours)

11
ALLIANCE FOR THE FAMILY FOUNDATION, PHILS., ET AL. VS. HON. JANET L. GARIN, ET AL., G.R. 217872, 26 APRIL
2017
12
IBID.

13
 Independently of public respondent’s wanton and inexcusable
breach of its own rules of procedure, the undisputed facts and
circumstances of this case establish grave implications on petitioner
WIZARD’s right to due process that likewise render the assailed
Resolutions void. Thus, assuming arguendo that petitioner WIZARD
was subjected to a preliminary inquiry, it was not, however,
informed or notified thereof by public respondent. Worse, after
allegedly conducting and terminating the same, public respondent
failed and/or refused to issue the resolution as mandated - - - in
spite of the repeated request or demand of petitioner WIZARD.

In fine, petitioner WIZARD was denied of its right to due

process when public respondent did not inform or notify it of the
conduct of a preliminary inquiry, and this was aggravated by the
subsequent failure or refusal of public respondent to issue the
required resolution which supposedly contains its findings and
reasonable grounds to proceed to a full administrative investigation
against petitioner WIZARD. Certainly, petitioner WIZARD was
deprived of a fair and reasonable opportunity to be heard and
explain its side during the preliminary inquiry. It was also denied of
the opportunity to seek a reconsideration of the resolution
mandated to be issued by public respondent. Public respondent
ought to know that the “right to a fair investigation [and trial] is the
most fundamental of all freedoms”.13

In Vivo vs. PAGCOR,14 the Supreme Court aptly pointed out

that - - -

“The observance of fairness in the conduct of an

investigation is at the very heart of procedural due
process. The essence of due process is to be heard,
and, as applied to administrative proceedings, THIS
MEANS A FAIR AND REASONABLE OPPORTUNITY TO
EXPLAIN ONE’S SIDE, OR AN OPPORTUNITY TO SEEK
A RECONSIDERATION OF THE ACTION OR RULING
COMPLAINED OF. Administrative due process cannot
be fully equated with due process in its strict judicial
sense, for in the former a formal or trial-type hearing is
not always necessary.” (Underscoring and Emphasis
Ours)

13
ESTRADA VS. DESIERTO, G.R. 146710, 02 MARCH 2001 CITING ESTES VS. TEXAS, 381 US 532.
14
721 PHIL. 34

14
 It may not be amiss to state at this juncture that, in denying
the requests or demand of petitioner WIZARD to be provided with a
copy of the resolution above, public respondent opined that: “[S]uch
demand is not only unprocedural but unduly interferes with the
authority of this Office to judiciously and independently conduct an
investigation.”15 This, however, is utterly preposterous, a sham,
lame or shallow excuse or justification of public respondent’s
refusal to furnish petitioner WIZARD with a copy of the resolution.
Such point of view of public respondent is a clear manifestation and
revelation of the despotic, whimsical and arbitrary discharge of its
powers vested by law.

It must be emphasized that the aforesaid resolution is not a

confidential business information that may not be disclosed to
the public, in accordance with Chapter VII, Section 34 of the PCA in
relation to Rule XI of the rules of procedure of PCC. This being so,
public respondent is bound by the transparency clause explicitly
provided in Chapter IX, Section 53 of the PCA, viz:

“Transparency Clause. – Final decision, orders

and rulings of the Commission shall be published in
the official website subject to Section 34 of this Act.

Records of public proceedings shall be made

available to the public subject to Section 34 of this
Act.”

The resolution is deemed part of the records of the preliminary

inquiry allegedly conducted by public respondent, and hence,
petitioner WIZARD, being the subject of the inquiry, and pursuant
to its right to due process, is entitled to demand its disclosure from
public respondent.

It is rather bemusing that public respondent has the temerity

to hold as “unprocedural” the disclosure of the resolution which
petitioner WIZARD demanded from public respondent. Public
respondent knew or ought to know that such request or demand for
the disclosure of the resolution is but a logical incident following the
notice that petitioner WIZARD is the subject of a full administrative
investigation. Petitioner WIZARD is simply exercising its right to be
informed of the findings and reasonable grounds of public
respondent to proceed to a full administrative investigation. On the
contrary, what should be considered “unprocedural” is public
respondent’s insistence to proceed to conduct a full administrative
15
PLS. SEE RESOLUTION DATED 23 JULY 2021, ANNEX “B”

15
investigation without a prior preliminary inquiry being conducted,
and its failure or refusal to issue the resolution as mandated by its
own rules of procedure.

Neither will the aforesaid request or demand of petitioner

WIZARD “unduly interferes” with public respondent’s authority to
conduct an investigation. Suffice it to say that it is nothing but a
figment of public respondent’s imagination. As heretofore
intimated, the motu proprio exercise or discharge of quasi-judicial,
regulatory or even administrative powers must be in conformity
with the policies, objectives and standards of the law, rules and
regulations, and must not transgress the constitutional rights of
those affected thereby.

Regrettably, the potential danger of an investigatory power

which an administrative agency may exercise motu propio is
exemplified in this case. The exercise of such power by public
respondent has been shown to have been utterly abused not only
because of its blatant and unjustifiable violation of its own rules of
procedure, but also by reason of its denial and disregard of
petitioner WIZARD’S right to due process of law. Such abuse of
power by public respondent requires the immediate intervention of
this Honorable Court. Article 8, Section 1 of the Constitution
reinforced and provided more prerogatives to the courts to
determine whether or not there is grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
administrative agencies, and eventually to prevent the excesses
complained of against them.

The investigation sought to be conducted

is devoid of factual and legal basis._______

In the challenged Resolutions herein, public respondent

reiterated what it averred in its initial notice 16, that petitioner
WIZARD “is the subject of a full administrative investigation
(FAI) for possible violation of Section 14 of Republic Act No.
10667 or the Philippine Competition Act in relation to Article
2, Section 3 of the Code of Ethics of the Philippine Association
of Legitimate Contractors.”17

Section 14 of the PCA, in explicit terms, state that - - -

16
PLS. SEE LETTER DATED 10 MAY 2021 OF PUBLIC RESPONDENT, ANNEX “J”
17
PLS. SEE ANNEXES “A” & “B”

16
 “PROHIBITED ACTS

Sec. 14. Anti-Competitive Agreements, -

(a) The following agreements, between or among

competitors, are per se prohibited:

(1) Restricting competition as to price, or

components thereof, or other terms of
trade;

(2) Fixing price at an auction or in any form

of bidding including cover bidding, bid
suppression, bid rotation, and market
allocation and other analogous practices
of bid manipulation;

(b) The following agreements, between or

among competitors which have the object or effect of
substantially preventing, restricting or lessening
competition shall be prohibited;

(1) Setting, limiting or controlling

production, markets, technical
development or investment;

(2) Dividing or sharing the market, whether

by volume of sales or purchases,
territory, type of goods or services,
buyers or sellers

(c) Agreements other than those specified in

(a) and (b) of this section which have the object or
effect of substantially preventing, restricting or
lessening competition shall also be prohibited:
Provided, Those which contribute to improving the
production or distribution of goods and services or to
promoting Rother, shall not be considered competitors
for purposes of this action.”

The above-quoted provision of the PCA prohibits competitors

to enter, form or create any of the anti-competitive agreements which
are enumerated therein. It is crystal clear that there are three (3)
separate and distinct anti-competitive agreements in the above-

17
quoted law. However, the notice, as per public respondent’s letter
dated 10 May 202118, did not specifically state which of the anti-
competitive agreements will be the subject of the full administrative
investigation. Public respondent again, wittingly or unwittingly, did
not comply with the provision of Rule II, Article I Section 2.1 of its
rules of procedure - - - which enjoins public respondent, in the
conduct of preliminary inquiry, to look into or determine the
“specific provisions of the Act, its implementing rules, or
other competition laws that may have been violated.” And in
addition to this, public respondent requested the submission of
documentary information such as petitioner WIZARD’s business
profile, organizational structure, annual reports from 2018 to present,
copies of certificate of registration with the DOLE, DTI, SEC and CDA,
audited financial statements from 2018 to present, copies of service
agreements for work performed from 2018 to present and list of all
clients with geographic locations where services were performed,
type of services provided and number of employees deployed from
2018 to present, all of which do not bear any relevance or
connection to the subject matter of the purported investigation
sought to be conducted. Truth to tell, these unavoidably created
the impression that said investigation is but a “shotgun” type of
investigation, or better yet, a mere “fishing expedition” that is clearly
indicative of want of factual or legal basis.

It is evident that public respondent has no jurisdiction to

investigate violation of the Code of Ethics of PALSCON. But in order
to subject petitioner WIZARD to its motu propio exercise or
discharge of its investigatory power, public respondent conveniently
linked or connected Article 2, Section 3 of the Code of Ethics of
PALSCON19 to Section 14 of the PCA. This means that the alleged
violation of the said provision of PALSCON’s Code of Ethics
constitutes an anti-competitive agreement which is proscribe in
Section 14 of the PCA. Simply put, a violation of the said provision
of PALSCON’s Code of Ethics is also a violation of Section 14 of the
PCA. And conversely, if there is no violation of PALSCON’s Code of
Ethics, it follows that there is no violation of Section 14 of the PCA to
speak of much less investigated by public respondent.

With the foregoing consideration, it is respectfully submitted

that the existence of a complaint against petitioner WIZARD for
violation of Article 2, Section 3 of PALSCON’s Code of Ethics is the
only reasonable ground available to public respondent to proceed to
the conduct of a full administrative investigation for possible
18
PLS. SEE ANNEX “j”
19
“A MEMBER SHALL NOT, DIRECTLY OR INDIRECTLY, ENCROACH UPON THE EXISTING BUSINESS RELATIONSHIP OF
ANOTHER PALSCON MEMBER AND THE LATTER’S CLIENTS AS WELL AS THE EXISTING EMPLOYMENT RELATIONSHIP
OF ANOTHER PALSCON MEMBER AND THE LATTER’S EMPLOYEES. IN NO INSTANCE SHALL A PALSCON MEMBER
COMMIT ANY ACT THAT WILL DISRUPT SUCH RELATIONSHIP.”

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violation of Section 14 of the PCA. The determination thereof does
not require an in depth or painstaking inquiry. The necessary
information thereon can easily be acquired from the Ethics
Committee of PALSCON or from its entire membership.

In any case, petitioner WIZARD, in its letter dated 25 May

2021 , already informed public respondent that there exists no
20

complaint filed against it by a member or members of PALSCON for

violation of the above provision of the Code of Ethics of PALSCON,
and this was confirmed by PALSCON’s National President, Ms.
Rhoda C. Caliwara, in her letter dated 12 January 2021 21 to public
respondent. Hence, it is beyond cavil that there is no plausible
reason or basis to subject petitioner WIZARD to the investigation
sought to be conducted by public respondent. Otherwise, it would
be an arbitrary, whimsical and despotic exercise or discharge of its
quasi-judicial power to investigate.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of

this Honorable Court that the assailed Resolutions dated 12 July
2021 and 23 July 2021, respectively, both issued by public
respondent, the Philippine Competition Commission, through its
Enforcement Office, in CEO-20-0059-FAI be SET ASIDE and
DECLARED VOID in toto and with prejudice for having been issued
with grave abuse of discretion tantamount to lack or excess of
jurisdiction, and lieu thereof, an order be issued DIRECTING public
respondent to cease and desist from conducting investigation on
petitioner for possible violation of Section 14 of the Philippine
Competition Act in relation to Article 2, Section 3 of the Code of
Ethics of PALSCON.

Other reliefs just and equitable in the premises are similarly

prayed for.

Quezon City for Manila, 15 August 2021.

MELGAR TRIA TRIA & LAURENTE

LAW OFFICES
Counsel for Petitioner
Suites 407-410 CSP Building
#815 Quezon Ave., Quezon City
20
ANNEX “K”
21
PLS. SEE ANNEX “G”.

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 Tel No. 83767777
e-mail address: metrillaw@metrillaw.com

By:

RENE V. TRIA
Roll #35597
IBP No. 142102; 02/01/21; Q.C.
PTR No. 9845854; 01/11/21; Mla.
MCLE Compliance No. 0018692; 02/26/09
e-mail address: rvtlaw@yahoo.com

GIOVANNI H. MELGAR
Roll # 39431
PTR No. 1061152; 02/23/21; Q.C.
IBP Lifetime Member 019014
MCLE Compliance VI-0027502
July 5, 2019

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

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