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Article by MM Sharma, Head Antagonism Law &Policy Practice, Vaish Associates, Advocates, New Delhi,India



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By way of adjustment anachronous 02.08.2019, the CompetitionCommission of India (“CCI/Commission”) has fined SAAR ITResources Pvt. Ltd (“SAAR”), CADD Systems and ServicesPvt. Ltd(“CADD”) and Pentacle Consultants (I) Pvt. Ltd(“Pentacle”) for accommodating behest in a breakable floated byPune Municipal Corporation (“PMC”).

PMC had floated a breakable (Tender No. 338 of 2015 dated11.01.2016) for ‘Selection of bureau for accustomed outgeo-enabled timberline demography application Geographical Admonition System (GIS)and Global Positioning System (GPS)’ pursuant to the directionsissued by the Aerial Court of Bombay vide acumen anachronous 20.09.2013.SAAR won the breakable with a amount adduce of INR 22.70/- per tree.This was the fourth breakable floated by PMC. The aboriginal two tenders(Tender No. 2 & 3 of 2015 anachronous 12.08.2015)1 were annulled as no bids werereceived alike afterwards admission of three extensions. Thereafter a thirdtender (Tender No. 250 of 2015) was floated by PMC on 14.10.2015which was additionally scrapped as alone one bid was accustomed in acknowledgment toit.



Information was filed afore the CCI by Nagrik Chetna Manch(“Informant”) – a accessible accommodating assurance declared to be asocially active alignment alive for accessible causes allegingcollusive behest in Breakable No. 338 of 2015 by SAAR, CADD, andPentacle by accepting an adjustment with PMC. It was declared thatSAAR was a pre-determined champ and CADD and Pentacle were mereproxy bidders.

As per the informant, accommodating behest took abode in threesteps:



(a) Applicant charge accept boilerplate anniversary about-face of added than INR 20million for the accomplished three banking years as adjoin to theearlier claim of INR 10 million.

(b) Applicant care to accept 100 abiding advisers on its payrollfor the aftermost six months.

The DG relied on admonition and evidences calm from theinformant, adverse parties and third parties including calldetails annal anatomy Telecom Service Providers (‘TSPs’),Internet Protocol (‘IP’) addresses of computers from wherebid abstracts were submitted, emails and statements of keyofficials and WhatsApp communications amid key actuality of theopposite parties.

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The allegation of the DG are abbreviated as under:

The DG additionally advised the allegations levelled adjoin PMC thatthe breakable was advised to favor SAAR, however, as per theinvestigation the aforementioned was not accustomed as PMC was able tojustify the changes in the tender’s accommodation criteriainter alia as recommendations from its Vigilancedepartment.

Before chief the case on merits, CCI aboriginal dealt with apreliminary affair aloft by SAAR that final hearings cannot beconducted in any amount in the absence of a administrative affiliate beingpart of such audition in the ablaze of the judgement the Aerial Courtof Delhi in the case of Mahindra Electric Mobility Limited andanr. V Antagonism Commission of India (W.P No. 11467 of2018). The Commission placed assurance on the adjustment of the HighCourt of Delhi in W.P (C) No. 6661/2019 (CADD Systems andServices pvt. Ltd case) in which it was captivated that the importof acumen in the Mahindra case cannot be that alive ofCCI be brought to a standstill until the administrative affiliate isappointed. The Hon’ble Court in its accommodation had additionally observedSection 15 of the Antagonism Act, 2002 (“the Act”) whichstates that the orders anesthetized by the Commission cannot be declared inquestion on annual of any abstraction or any birthmark in theconstitution of the Commission.

Coming to the claim of the case, the Commission empiric thatthere was a tacit compassionate amid SAAR and CADD as able-bodied asSAAR and Pentacle, pursuant to which CADD and Pentacle alone actedas proxy bidders/ awning bidders for SAAR. Lack of able scrutinyby PMC ensured that CADD and Pentacle authorize the abstruse roundand be in reckoning so as to account SAAR, to get the tender. Also,SAAR by alignment DDs for CADD and Pentacle, from its ownresources, and by facilitating acquiescence of online bids ofPentacle from its own appointment ensured that acceptable cardinal ofbidders were available.

The Commission acclaimed that the assay showed similaritiesin affidavit which acerb accustomed that alike thedocumentation for the bids was abiding by SAAR and CADD as able-bodied asby SAAR and Pentacle, in concert with anniversary other. CCI alsoacknowledged the alarm annal and screenshot of letters in theinvestigation address which appear an compassionate amid keyofficials of SAAR and Late Preetam Singh Rathore in affiliation tosubmission of bids by CADD.

SAAR had arguable that the DG has bootless to appearance that thealleged conduct had created access barriers and additionally that the quoteof anniversary of the bidders was absolute as can been assume by thedifference in such quotes. However, the CCI captivated that merepossibility that there were added players cannot be a arena ofdefense to accompaniment that they are no barriers to access and as per theExplanation to Section 3(3) of the Act makes it bright that bidrigging alike includes an acceding that has the aftereffect of reducingcompetition for bids or abnormally affecting or manipulating theprocess of bidding.

The CCI additionally alone the acquiescence of Pentacle that it was arbitrary blow with SAAR as the two were aggravating to anatomy a jointventure to bid in common. CCI acclaimed that it was a bald afterthoughtas no accouterment was begin in the breakable altitude whereby anyjoint bid was accurately accustomed through a collective venture.

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The Commission added captivated that alike if it accustomed thecontention of Pentacle that it placed it bid at 10.42 AM on29.01.2016, which was 36 hours above-mentioned to the bid placed by SAAR,Pentacle has not been able to absolve as to why it acclimated the IPaddress of SAAR to abode its bid. The Commission took agenda of thefact that Pentacle accepting a full-fledged basement instead ofusing it, placed it bid application the basement of SAAR.

SAAR had additionally arguable that the DG had bootless to backpack ananalysis of Appreciable Adverse Aftereffect on Antagonism (AAEC) toestablish the declared accommodating conduct to which the CCI stronglyrejected advertence that the adverse parties accept not been able todisprove the affirmation adjoin them and the advance of SAAR has beento display shortcomings in the assay report. The CCI heldthat accommodating conduct beneath Section 3(3) of the Act is accepted tohave AAEC and no added assay is required. The Commission notedthat the beginning of account of factors beneath Section 19(3)of the Act and for the Commission to thereafter appraise from theprism of “rule of reason” as adjoin to “perse” rule, requires that the affair answerable with has to givesome affirmation which is able abundant to allay the presumptionagainst it. CCI acclaimed that the adverse parties accept bootless todemonstrate how their conduct had resulted in accretion of benefitsto consumers or fabricated improvements in assembly or administration ofgoods/service in catechism or advance of any technical, scientificand bread-and-butter development by agency of assembly or administration ofgoods or accouterment of services.

Accordingly, CCI imposed amends of INR 1.26 Crores on SAAR, INR0.11 Crores on CADD and INR 1.33 Crores on Pentacle affected @10% of the boilerplate about-face for the above-mentioned three years. Inaddition, the Commission additionally imposed penalties on the officebearers affected @ 10% of their boilerplate assets for the precedingthree years: Mr. Arun Rao (Director SAAR): INR 2, 40, 258/-, Mr. Ajay Rao (Director- SAAR): INR 1, 69, 298/- , Mr. PankajDobra (MD- CADD): INR 79,959/- and Mr. Chetan Pathare ( Director Pentacle) : INR 57, 994/-.

As commendations PMC, the Commission acclaimed that the facts of thepresent case were agnate to Case No. 50/2015 in which CCI hadobserved that PMC had bootless to ascertain cartelization in its owntenders and had not acclimatized due activity while analytical thebid documents. With annual to the present case also, the DG hadfound abundant affirmation that PMC had bootless to ascertain cartelizationin its own tender. Shortlisting proxy bidders which did not satisfythe abstruse belief and added analytical failures on the allotment ofPMC adumbrated that the conduct of PMC ability accept facilitated thebid rigging. However, the CCI captivated that PMC’s conduct charge notbe advised beneath the accoutrement of Section 3 of the Act, as it wasa procurer.

COMMENT: Though this is addition archetypal case of collusivebidding in accessible accretion penalized by CCI but what isdisturbing is how the Commission abandoned to apprehension and baste theclear abetment of the accessible client , the Pune MunicipalCorporation , in firstly , akin the cardinal of bidders toonly two by absorption bottomward the accommodation altitude to clothing onlythe two bidders and secondly declining to ascertain accessible signs ofcollusive behest as noticed during the investigation. Inmy appearance it is aerial time that CCI takes a boxy angle on suchcartels induced by the client itself a abnormality which is perhapsunique for India ! The added agnate archetype of Buyer’scomplicity is begin in the beforehand case of adamantine amount bunch in accumulation of atramentous liasoningservices to the seven thermal ability stations ofMAHAGENCO.

Note: This commodity aboriginal appeared on the Antitrust & Antagonism Law Blog

On 22 August 2019 .

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Footnote

1 Breakable No. 2 of 2015 was forZones 1 and 2 of PMC while Breakable No.2 of 2015 was for Zones 3 and4 of the PMC.

Specific Questions apropos to this commodity should be addresseddirectly to the author.

2019, Vaish Associates Advocates,
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Advocates, 1st & 11th Floors, Mohan Dev Building 13, TolstoyMarg New Delhi-110001 (India).

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