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2013 (2) TMI 867 - AT - Law of CompetitionManipulation of bidding process in contravention of provision of Section 3(3)(d) - Engagement in cartelization and bid rigging - nascent stage of competition jurisdiction would be one of the factors to be taken into consideration while inflicting penalties - process of bid rigging in the matter of supply and installation testing and commissioning of Modular Operation Theatre (MOT for short) and Medical Gases Manifold System (MGMS) at Sports Injury Centre (SIC hereinafter) Safdarjung Hospital New Delhi. Held that - This was a contract for building a Operation Theatre for the Sports Injury Centre (SIC) which subject itself is relatively new. This Sports Injury Centre was to be created before the Commonwealth Games. The said games were to be held in India in the year 2010. The MDD seems to have completed this exercise within time and at least there is no evidence to suggest that the said Operation Theatre has not worked well. The Commonwealth Games were undoubtedly a matter of national importance and prestige. Some credit has to be given to MDD for this purpose. We would therefore bring down the penalty of MDD to 3%. In that view showing due consideration to all the other factors and to maintain the parity between the parties we would bring down the penalty from 5% of the average turnover of last three years to 3% of the average turnover of last three years even in case of PES and MPS also. Calculated in that light the penalty would be as per the following table - We therefore inflict the penalty as shown in the table. The penalties imposed by the CCI in the impugned order dated 16.04.2012 shall stand modified to that extent. The three enterprises on whom the penalties have been imposed are directed to deposit the amount of penalties within 90 days of the receipt of this order.
Issues Involved:
1. Contravention of Section 3(3)(d) read with Section 3(1) of the Competition Act, 2002 by indulging in bid rigging. 2. Imposition of penalties under Section 27 of the Competition Act, 2002. Issue-Wise Detailed Analysis: 1. Contravention of Section 3(3)(d) read with Section 3(1) of the Competition Act, 2002 by indulging in bid rigging: The judgment addresses three appeals filed by MDD Medical System India (P) Ltd. (MDD), PES Installations Ltd. (PES), and Medical Products Services (MPS) against a common order by the Competition Commission of India (CCI). The CCI found that the appellants had contravened Section 3(3)(d) read with Section 3(1) of the Competition Act, 2002 by engaging in bid rigging for the supply, installation, testing, and commissioning of Modular Operation Theatre (MOT) and Medical Gases Manifold System (MGMS) at Sports Injury Centre (SIC), Safdarjung Hospital, New Delhi. The penalties imposed were Rs. 18,470,778 on MDD, Rs. 6,840,252 on PES, and Rs. 4,784,188 on MPS. The factual matrix reveals that an NGO alleged bid rigging in the tender process for MOT and MGMS, which was floated by HSCC on behalf of the hospital. The informant claimed that the combined work order for MOT and MGMS excluded specialized companies and limited competition. It was alleged that government officials manipulated the tender process to favor the appellants. The CCI, after investigation, found several irregularities, including common typographical errors in the bids of the three firms, suggesting collusion. The Director General's investigation revealed that MDD and PES had a mutual understanding, with PES submitting a losing bid to allow MDD to win. The CCI concluded that the appellants acted in concert, violating Section 3(3)(d) of the Act. The CCI criticized the tender design and specifications, noting that the tendering authority ignored high offers compared to the estimated cost. The CCI found that the common errors and typographical mistakes in the bid documents indicated a meeting of minds among the bidders. The CCI rejected the explanation that the errors occurred due to the bids being typed at a common cyber caf'e. The CCI also noted that PES, despite being the sole distributor of Stryker products, did not object to MDD's authorization from Stryker. The CCI found that PES submitted a token bid, and MDD kept enough cushion in its quoted price, allowing PES to share the profit earned from the contract. The CCI concluded that PES and MPS submitted complementary bids to ensure the procurement process did not stall due to lack of competition. 2. Imposition of penalties under Section 27 of the Competition Act, 2002: The CCI imposed penalties under Section 27 of the Act based on 5% of the average turnover of the appellants. The appellants criticized the order, arguing that they were not given an opportunity to address the question of penalty separately and that the CCI did not provide reasons for fixing the penalty at 5% of the average turnover. The Tribunal noted that the CCI should have considered certain factors while inflicting penalties, such as the fact that this was a single incident and the parties were being booked for the first time. The Tribunal found that the CCI did not provide any justification for fixing the penalty at 5% of the average turnover. The Tribunal reduced the penalty to 3% of the average turnover of the last three years for all three appellants, considering the nascent stage of competition jurisprudence in India, the fact that this was the first time the parties were found to have engaged in cartelization and bid rigging, and the timely execution of the contract for the Sports Injury Centre before the Commonwealth Games. Conclusion: The penalties imposed by the CCI were modified, reducing the penalty to 3% of the average turnover of the last three years for each appellant. The appellants were directed to deposit the modified penalty amounts within 90 days of the order.
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