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TMI Blog2024 (11) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... rce Nanda Engineering Works, quoted rates higher than the OPs. The Commission observes that apart from the bid quotations made by OP-2 and OP-3 in two tenders with minor difference in their prices, there is no other evidence on record, which may support the allegations of the Informant regarding cartelisation between them - it is no longer res integra that mere price parallelism is not sufficient to arrive at a finding of cartelisation without there being evidence of any plus factors in support of parallel pricing. In the present matter, there are no plus factors averred by the Informant indicating meeting of minds or collusion between OP-2 and OP-3 or among OPs. Accordingly, in view of the Commission, neither case of cartelisation in contravention of the provisions of Section 3 of the Act is made out in the present matter against OP-2 and OP-3 nor there arises any question of violation of the provisions of Section 3 of the Act by OP-1. The Commission is of the view that OP-1 being a consumer/ procurer of the impugned item has freedom to specify its requirements/ conditions/ EC and the said requirements/ conditions/ EC themselves cannot be deemed to be anti- competitive. Thus, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 104 0081; 7) Bogie bolster complete for MEMU - drg. No. 32904001 - PL No. 3004 0231; 8) Bogie frame for non-AC LHB coaches drg. No. 66703001 - PL No. 3370 0084; 9) Bogie frame for SLR/ Power LHB coaches - drg. No. 83403001, 83403002; 10) Bogie frame for LHB coaches (coil spring in secondary) - drg. No.45503001- PL No. 3350 9736; 11) Bogie frame for LHB power car - drg. No. 53803001; 12) Bogie bolster for LHB coaches - drg. No.45504008 -3399 3348; 13) Bogie bolster for LHB coaches - drg. No. 66704001 - 3399 6817) (or) as components of kits assemblies, to ICF/ RCF/ MCF to the extent of 20% of the tendered quantity against a single regular/bulk purchase order OR 35% of the tendered quantity against multiple purchase order during the last three previous financial years and the current financial year upto the date of opening of tender. In addition to fulfilling the requirement of bulk order as mentioned above, firm should have supplied minimum 50 coach sets (200 nos) of same/similar item in past to ICF/RCF/MCF for consideration of placement of bulk order. Documents to be submitted: Firm has to submit summary statement of past supply performance of same/similar items duly indicating PO d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recognises approved sources irrespective of their non-performance and non-participation. Furthermore, it ignores Railway Board guidelines for weeding out of non-participating and non-performing vendors. It also ignores Railway Board guidelines for inclusion of past suppliers in approved vendor list. 8. The Informant has alleged that despite sudden increase in tendered quantity, EC even excludes regular/ bulk sources which is against the public policy laid down by the Manual for Procurement of Goods, 2022, Department of Expenditure, Ministry of Finance, Government of India and the policy laid down in various Government of India notifications. 9. The Informant has alleged that OP-2 and OP-3 have continuously been L1 and L2 respectively accepting counter offer rates of L1, amongst the approved sources, for last 6-7 years. Furthermore, careful examination of the previous quotations made by OP-2 and OP-3 will exhibit cartel pattern between them. The Informant has alleged that without cartel between them, it would have been impossible for OP-2 to remain L1 for so many years because OP-3 has been accepting rates of L1 without aspiring to become L1. In the Impugned Tender also, OP-2 had re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s bidders in different categories viz. approved, developmental, bulk, regular etc. has not been provided by the Informant. The Informant has however, furnished a tabulation of previous year tenders mentioning their tender numbers, PO, quantity ordered, price per unit and vendor name on whom the order has been placed to the extent available with him. The Informant has also stated that There had not been any reverse auction in these tenders. 17. Details of the financial bids received in the said three tenders are tabulated as under based on the information received from the Informant: Table 1: Bid Details of Impugned Tender No. 03220150 Date of Tender Opening: 06.02.2023 Quantity: 1811 Value: INR 2,67,84,907 Position Participant Vendor/ Bidder Bid Price (INR) Quantity awarded Award rate (INR) L1 Aditya Techno Fab Engineering - Dhar 14790.00 0 N.A. L2 P D Automotives - Mandi 15989.00 0 N.A. L3 Raj Engineering Corporation - Kanpur 16887.00 0 N.A. L4 SKM Industries - Umbergaon, Valsad 17629.00 0 N.A. L5 P D Autos - Mandi Gobindgarh 17744.00 0 N.A. L6 I R G Fabrication - Chennai 18244.00 0 N.A. L7 Global Engineering and Process - Chennai 18879.00 0 N.A. L8 Universal Engineers Chennai Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nda Engineering Works - Bhilai 19470.00 L8 B.I. Enterprises - Kolkata 19470.00 L9 P.D. Autos - Mandi Gobindgarh 19965.60 L10 Mekins Industries Limited - Hyderabad 21872.48 L11 Bharat Industries - Sangrur 24544.00 L12 D. Electro Steel Co. Pvt. Ltd. - Kolkata 26999.84 L13 Precision Coats and Fin Product - Chennai 27000.01 L14 Plasto Power Engineers - Sangrur 35400.00 L15 Standard Profile Industries - Pune 206500.00 18. It is noted from the above tables that in the Impugned Tender, there was a significant difference of more than INR 2000/- between bids quoted by OP-2 and OP-3; in the remaining two tenders viz. Tender Nos. 03221028 and 03211577, there seems to be a minor difference of around INR 10 in the bid amounts of OP-2 and OP-3. However, there is no evidence on record that any part of the remaining two tenders were awarded to OP-2 and/ or OP-3. Further, it is noted that the bids quoted by several remaining bidders (approved or un-approved sources) were in the same range or higher than the bids quoted by OP-2 and OP-3. Specifically, it is noted that in all three tenders, the approved source Nanda Engineering Works, quoted rates higher than the OPs. 19. Therefore, in light of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in contravention of the provisions of Section 3 of the Act is made out in the present matter against OP-2 and OP-3 nor there arises any question of violation of the provisions of Section 3 of the Act by OP-1. 24. Now coming to the allegations of contravention of the provisions of Section 4 of the Act by OP-1, the Commission observes that the Informant s allegation that vis- -vis the Railway Board guidelines of minimum of five active vendors for tenders, only two sources were active, does not hold true as another active vendor Nanda Engineering Works is seen to be regularly bidding in the Railway tenders. From other data submitted by the Informant, it is also seen that another approved vendor EC Blade and Tools Pvt. Ltd also bid for certain Railway tenders earlier. 25. Further, the Informant has also not submitted as to in what relevant market, is OP-1 alleged to be abusing dominant position. It has merely alleged that OP-1 is abusing its dominance in procurement of the impugned item. 26. In this regard, it is pertinent to note that regarding the procurers, the Commission in its earlier matters, has held: Case No. 40 of 2016 (Shri Kailash Chander Sharma And Coal India Ltd. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the consumption of a good/ service Case No. 48 of 2021 (Mr. Dushyant And National Accreditation Board for Testing and Calibration Laboratories) The Commission has, in some previous cases, recognising the autonomy of the procurer, stated that the procurer is the best judge of what and how it wants. At the cost of repetition, the Commission notes that every consumer/ procurer must have the freedom to exercise its choice freely in the procurement of goods/services and such a choice is sacrosanct in a market economy. While exercising their choice, OPs are free to stipulate standards for procurement, and the same cannot be held to be out-rightly anti-competitive and will depend, inter alia, on factors such as the nature of the procurement, the size of procurer, the goods/ services sought to be procured by it, and whether such buying will result in foreclosure for other sellers operating in the market who are competing to sell and are substantially dependent on such buying process. Further, the autonomy to specify the requirements of procurement is inherent in the procurers. When the procurer is a dominant buyer in its sphere of economic activity and its unilateral conduct in the buyin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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