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TMI Blog2025 (3) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... has alleged that OP-1 awarded the Work Order to OP-2, despite it having no prior experience or relation whatsoever with the PM SHRI Scheme and abused its dominant position under Section 4 of the Act. Further OP-2 abused its dominant position by issuing an RFP which is faulty, restrictive and defective. The Commission is of the view that the alleged conduct of OP-1 in appointing OP-2 as PMC and further issuance of faulty RFP by OP-2 themselves are not amenable under the province of Section 4 of the Act without any supporting evidence. Simply selection or non-selection of an agency as PMC or issuance or non-issuance of RFP or issuance of defective RFP by an entity cannot be said to be abusive in terms of Section 4 of the Act unless and until there are availability of ingredients of the same as required under the Act. As stated, these issues lie within the precinct of the freedom of the procurer. The Commission, based on the facts and circumstances and analysis carried out, does not find it appropriate to examine the conduct of OP-1 and OP-2. Accordingly, the Commission has refrained from delineating relevant market and assessment of dominance, as required under the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jority of bidders by way of having stringent and arbitrary technical specifications that did not correspond to industry standards and resulting in a tacit agreement between the Opposite Parties, thereby violating the provisions of Section 3 of the Act. 5. It is alleged that both OP-1 and OP-2 have abused their dominant position in the market by acting in an opaque and arbitrary manner. As per the Informant, the selection of OP- 2 by OP-1 was not done through a fair and transparent process. Instead, without any due reason assigned for the same, the Work Order was given to OP-2, despite it having no prior expertise or any relation with the PM SHRI Scheme. This is also stated to be evidenced by the fact that, as per the description provided on the official website of OP- 2, it is mainly engaged in the business of modernizing the existing telecom system for train control, operation and safety, creation of nationwide broadband and multimedia network and laying optical fiber cable using the right way along railway tracks. 6. As per the Information, OP-1 without any due procedure and consideration of relevancy, appointed OP-2 as the Project Management Consultant ("PMC") for implementati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the RFP, it is necessary to take into account the local factors such as language, demographics etc., to implement the PM SHRI scheme in the most efficient manner, which has been minimized by OP-2 by disallowing fair bidding. (vi) Corrigendum 1 to the RFP dated 15.12.2023 introduced restrictive bid qualifications, including a minimum qualifying turnover of over 450 crores and mandatory Capability Maturity Model Integration ("CMMI") Certificate which is not justified by the Scope of Work and served to exclude many potential bidders who could otherwise fulfill the contract efficiently. (vii) The agreement and bidding process have contravened the Public Procurement Policy for Micro and Small Enterprises ("MSEs") Order, 2012, as amended in 2022, by not ensuring fair and equal opportunity for MSEs. This exclusion of MSEs from the bidding process violates the principles set forth in the MSME order, which mandates a minimum 25% procurement from MSEs. (viii) RFP lacked a provision for a pre-bid meeting which is crucial for clarifying doubts and ensuring a comprehensive project understanding. It is also stated that the RFP was categorized under "Service Category" on RailTel's websi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also requested the Commission to pass any other order that it deemed fit to ensure free and fair competition. 12. The Commission considered the Information in the ordinary meeting held on 15.01.2025 and decided to pass an appropriate order. 13. Going by the content of Information, the Commission observes that the Informant primarily appears to be aggrieved by the alleged abuse of dominant position by OP-1 in appointing OP-2 as the PMC for implementation of the PM SHRI scheme in JNVs across India without providing any reasonable justifications as to why OP-2 was selected to carry out the Work Order dated 24.01.2024. The Informant also appears to be aggrieved, inter alia, by alleged abuse of dominant position by OP-2 in releasing an RFP which restricted entry of entities in the bidding process and also outlined a very broad scope of work that is not capable of being carried out by any one entity in its entirety. In addition to the allegations under Section 4 of the Act, the Informant has alleged violation of the provisions of Section 3 of the Act. 14. With regard to the violation of Section 3 of the Act, the Commission notes that it prohibits anti-competitive agreements which incl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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