2019 (2) TMI 2122 - AT - Law of Competition

Anti-competitive action - collusive bid rigging - whether the CCI erred in undertaking an exercise itself to determine whether or not the allegation of inter-alia collusive bid rigging leveled against Respondent No. 2 3 has been established without ordering an investigation in terms of Section 26(1) of the Competition Act 2002? HELD THAT - CCI is empowered to inquire into any alleged contravention of provisions contained in Section 3(1) or Section 4(1) of the Competition Act 2002 on its own motion or on receipt of an information from any person consumers or their associations or trade associations or upon a reference made to it by the Central Government State Government or Statutory Authority. Section 26 of the Act provides that upon receipt of a reference or upon its own knowledge or upon information received from any person the Commission if of opinion that there exists a prima facie case shall direct the Director General (DG) to cause an investigation to be made into the matter. On a bare reading of this provision it is abundantly clear that causing of investigation to be conducted by Director General is entirely dependent on existence of a prima facie case warranting such investigation. Unless the Commission is satisfied that a prima facie case exists the Informant (where information has been received from any person) has no vested right to seek investigation into alleged contravention of provisions Section 3(1) or Section 4(1) of the Act. The Appellant Informant who was neither an OEM nor an SI and was not in the fray for bidding qua the tender in question raised competition concerns on the basis of wild allegations without any substance. The circumstances projected by him in absence of any incriminating evidence would not justify drawing inference of complicity of Respondents 2 and 3 in bid rigging/ collusive bidding. The Appellant-Informant has miserably failed to make out a prima facie case warranting causing of an investigation by DG. The impugned order passed by the Commission is based on application of mind and does not suffer from any legal infirmity. Conclusion - The Appellant-Informant has miserably failed to make out a prima facie case warranting causing of an investigation by DG. The impugned order passed by the Commission is based on application of mind and does not suffer from any legal infirmity. Appeal dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal issue in this judgment is whether the Competition Commission of India (CCI) erred in its decision to dismiss the allegations of collusive bid rigging against the Respondents without ordering an investigation under Section 26(1) of the Competition Act, 2002.

2. ISSUE-WISE DETAILED ANALYSIS

Relevant Legal Framework and Precedents

The relevant legal framework is provided by Section 3 of the Competition Act, 2002, which prohibits agreements that cause or are likely to cause an appreciable adverse effect on competition within India. Specifically, agreements that result in bid rigging or collusive bidding are presumed to have such an adverse effect. Section 26 of the Act outlines the procedure for inquiry into alleged contraventions, allowing the CCI to direct an investigation if a prima facie case exists.

Court's Interpretation and Reasoning

The court interpreted Section 3 as requiring evidence of an agreement between enterprises or persons engaged in similar business activities that results in bid rigging or collusive bidding. The court emphasized that the presumption of an adverse effect on competition arises only when there is evidence of such an agreement.

Key Evidence and Findings

The Appellant alleged that Respondents 2 and 3 colluded in the bidding process for a tender floated by Bharat Heavy Electricals Ltd. (BHEL) for IT equipment. The CCI found that the tender process was open and competitive, with various participants involved in pre-bid discussions. Only Respondents 2 and 3 submitted bids for Group-A items, which included maintenance services over a five-year lease period. The CCI concluded that low participation was not indicative of collusion and found no evidence of bid rotation or supportive bidding between the Respondents.

Application of Law to Facts

The court applied the legal principles of Section 3 to the facts, determining that the Appellant failed to provide evidence of an agreement or meeting of minds between the Respondents that would suggest collusive bidding. The court noted that the choice of quoting products from a particular manufacturer by Respondent No. 2 was within the terms of the tender and did not imply collusion.

Treatment of Competing Arguments

The court considered the Appellant's allegations but found them to be unsubstantiated. The court noted that the Appellant's claims were based on assumptions rather than evidence. The CCI's findings that Respondents 2 and 3 operated independently and that no evidence of bid rotation was present were upheld.

Conclusions

The court concluded that the Appellant failed to establish a prima facie case of collusive bidding, and the CCI's decision to not order an investigation was justified. The appeal was dismissed on the grounds that the allegations lacked merit and were unsupported by evidence.

3. SIGNIFICANT HOLDINGS

Preserve Verbatim Quotes of Crucial Legal Reasoning

"The Appellant-Informant has miserably failed to make out a prima facie case warranting causing of an investigation by DG. The impugned order passed by the Commission is based on application of mind and does not suffer from any legal infirmity."

Core Principles Established

The judgment reinforces the principle that allegations of anti-competitive behavior must be supported by evidence demonstrating an agreement or meeting of minds between the parties involved. Mere assumptions or low participation in a bidding process do not suffice to establish collusion.

Final Determinations on Each Issue

The court determined that the CCI acted within its discretion by dismissing the case without ordering an investigation, as the Appellant did not present a prima facie case. The appeal was dismissed, and no costs were awarded.