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TMI Blog2013 (2) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... s the AAI has in any way breached any of the provision of section 4. The AAI was acting in its capacity as a consumer and as argued by the representative for the AAI it was equipped with technical committee to advise the AAI for a purchase of particular type of bollards. It cannot be imagined that a body like AAI was not equipped with the technical advice and would be acting without any such technical assistance. Therefore, if the AAI had a free choice to purchase a particular type of commodity, its hands could not be tied by taking the recourse to the competition act and the provisions there under. After all in the market the consumer would have to be given consumers dew i.e. basically his choice. The contention raised by appellant therefore, rejected. The argument of Appellant cannot be accepted that AAI was a dominant purchaser and had abused its dominance. In fact for the purposes of deciding the dominance, both the product market as well as geographical market are to be considered and insofar as the product market is concerned, it related to all the kinds of bollards whether hydraulic operated or otherwise. It is commonly known that bollards are used everywhere. The bollard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This was also for procurement and installation of bollards in respect of the five airports named in the notice. Significantly enough in the first notice the AAI had not indicated the airports in respect of which it was floating the tender nor was its requirement about particular type of bollards specifically stated. In the later notice, however, the AAI clarified that the bollards were required for five airports and they were to be electro Hydraulic operated / controlled tyre killers and bollards. Some other conditions like previous experience and proof of having done similar work was also required along with the tender bids. It was stated in the information that bollards are rigid or retractable posts used for closing the road or path to vehicles. Bollards can be mounted at entrances of the security sensitive infrastructures. They are installed below the road surface and their retractibility takes place either through Pneumatic cylinders and pumps or Hydraulic cylinders and pumps or more sophisticated electro-mechanical motorized mechanism. With the said information the informant also pointed out the difference between the terms and conditions in the two notices floated by AAI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t company. It was also alleged that imposing unfair and discriminatory conditions in the tender invitation notice by creating a regulatory, financial, high capital cost, marketing and technical entry barriers in the bollards purchase market the AAI has contravened section 4(2)(a)(i) of the Act. Some other alleged irregularities were also reported. 4. The CCI firstly held that there was no evidence available on record or in a public domain which could show that AAI is a dominant buyer of bollards in India. This inference was reached on account of the fact the bollards were not specifically required for AAI alone but there were many organizations like Urban Development Authorities, Road Transport Authorities infrastructure companies and number of private companies including hotels etc, who require the said bollards for security as well as for traffic management. The CCI, therefore, held that the AAI could not be said to be a dominant purchaser of bollards in India. 5. It was also found that the informant had failed in the prequalification scrutiny because of technical reasons and for want of relevant experience in executing similar work as desired by the AAI. It was also observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that though the number of letters were sent to the Bureau of Civil Aviation Security and more particularly to the Additional Commissioner Shri Rajendra Dhoke, all these letters were not even taken note of and the Bureau of Civil Aviation security remained sinisterly silent. Shri Sharma has given voluminous record regarding the appellant company and also its strong points. He, therefore, urged that in limiting the choice to the electro Hydraulic operated/controlled tyre killers and bollards the AAI had created entry barriers and had kept the other manufacturer of other system bollards out of the competition. According to him this action went totally against the spirit of competition. He also pointed out that the finding of the CCI regarding the AAI not being the dominant player was also incorrect. According to him the relevant market should have been only the airports as the AAI was dealing only with the Airports. 7. Before we take up the contentions for consideration, we must refer to the prayer clause in the information-cum-complaint relief sought by the informant was as under:- 1. That the Airport Authority of India should be directed to issue open tender wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase the same. Accordingly, merely because a consumer requires a particular type of commodity does not mean that by inviting tenders for that commodity the entry barriers are created for any other commodities. If we take such a view then there would be no element of choice left for a consumer in any market. Shri Sharma was not able to counter the argument of the representative of AAI that its requirement was as per the recommendations of the technical committee. It cannot be imagined that a body like AAI was not equipped with the technical advice and would be acting without any such technical assistance. Therefore, if the AAI had a free choice to purchase a particular type of commodity, its hands could not be tied by taking the recourse to the competition act and the provisions there under. After all in the market the consumer would have to be given consumers dew i.e. basically his choice. The contention raised by Shri Sharma is, therefore, rejected. 13. We do not see any justification to hold that there was any breach of any of the provisions under Section 4 of the Act. Similarly, we cannot accept the argument of Shri Sharma that AAI was a dominant purchaser and had abused i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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