Harish Kumar and M/s S B Telecommunication & Others

Case No. 38 of 2023 Page 1 of 8 COMPETITION COMMISSION OF INDIA Case No. 38 of 2023 In Re: Harish Kumar Informant A-62/1 Phase 1, Bannuval Nagar, Behind Ramdev Ashram, Pilibhit Byepass Road, Bareilly 243005 And M/s S B Telecommunication Opposite Party No. 1 618, EA 5/113, Madhobari, Bareilly 243005 (UP) Also at: 31 Haziyapur near Model Town Police Chowki Bareilly, UP 243005 M/s Indulge Sign & Graphics Opposite Party No. 2 D-96, Okhla Industrial Area, Phase- I New Delhi 110020 M/s Adtek Print & Media Pvt Ltd. Opposite Party No. 3 235, Janakpuri, Bareilly, Uttar Pradesh 243001 Bareilly Nagar Nigam Opposite Party No. 4 through Commissioner/Secretary, Nagar Nigam, Bareilly Opp. Bareilly College, Bareilly Civil Lines, Uttar Pradesh 243001 CORAM Ms. Ravneet Kaur Chairperson Mr. Anil Agrawal Member Ms. Sweta Kakkad Member Mr. Deepak Anurag Member Case No. 38 of 2023 Page 2 of 8 Order under Section 26(2) of the Competition Act, 2002 1. The present Information has been filed by Mr. Harish Kumar, (‘Informant’) under Section 19(1)(a) of the Competition Act, 2002 (‘Act’) alleging contravention of Section 3(3)(d) read with Section 3 (1) of the Act by M/s S B Telecommunication (‘OP-1’), M/s Indulge Sign & Graphics (‘OP-2’), M/s Adtek Print & Media Pvt. Ltd. (‘OP-3’) and Bareilly Nagar Nigam (‘OP-4’), (hereinafter, OP-1 to OP-3 are collectively referred to as the ‘Opposite Parties/OPs’. Facts and allegations as stated in the Information 2. The Informant is engaged in the business of advertisement and publicity and is a registered vendor of OP-4. 3. According to the Informant, on 28.03.2022, OP-4 published an advertisement in local newspapers for registration/renewal, of advertisement agencies who wished to work with OP-4. The last date of submission of applications for registration alongwith registration fee as ₹50,000/- and Earnest Money Deposit (‘EMD’) as ₹2,00,000/- was 15.04.2022. The said date to deposit the EMD was further extended to 20.04.2022 for those agencies who had submitted their registration application and financial documents on or before 15.04.2022 but were unable to deposit the EMD by the given date i.e. 15.04.2022. About 28 advertisement agencies applied for the said registration by due date i.e. 15.04.2022. 4. Thereafter, e-tender Invitation Notice was published by OP-4 in newspapers on 05.05.2022. The said tender was issued for the allotment of unipole/single pole/cantilever/advertisement space at different places under the jurisdiction of OP-4 for the purpose of advertising. As per certain tender conditions, only those agencies which were registered with OP-4 and with turnover exceeding ₹20 crores, could participate in the tender process. Based on this turnover criteria, out of all agencies, only OP-3 was found to be eligible. The Informant had alleged that the terms and conditions were not in consonance with the provisions of the Act as these had been fixed by OP-4 to favour a particular company and preclude others. Case No. 38 of 2023 Page 3 of 8 5. Further, the Informant has alleged that OP-4 without giving any notice in any newspaper or communication to the public, reduced the turnover criteria from ₹20 crores to ₹9.5 crores and uploaded this information on the tender portal/OP-4’s website on 18.05.2022. The last date of uploading of tender was extended from 20.05.2022 to 22.05.2022. As per the Informant, in case of any change in tender conditions, a new tender ought to have been floated. Thus, the change in turnover criteria was a violation of the Act and of vigilance guidelines. 6. The Informant has also alleged that both OP-1, engaged in the distribution of ITC and Cadbury products and OP-2, engaged in the provision of advertising services, provided the EMDs in the form of Fixed Deposit Receipt (‘FDR’) only on 21.05.2022. However, they were given registration by OP-4 on 04.05.2022, after the due dates i.e. 15.04.2022 and 20.04.2022. 7. It is alleged that OP-1 and OP-2 are dummy/associated firms of OP-3. Only 3 firms who were associated with each other participated in tender. For example, directors/partner of OP-3 and OP-1 were also directors in M/s Shree Divtatv Wellness Pvt. Ltd. Further, the workplace and head office address of M/s Shree Divtatv Wellness Pvt. Ltd. and OP-2 are the same. 8. According to the Informant, backdated registration was given by OP-4 to OP-1 and OP- 2 which are associated concerns of OP-3, in connivance with them. This was done by OP-4 in haste, to accommodate the preferred firms (OP-1 to OP-3). As a result, only 3 firms participated in the tender process. It was alleged that OP-4’s officials were also involved in bid rigging. They floated the tender for the benefit of the OPs who were all associated with each other. OP-4’s officials advertised the tender in a manner that only these OPs could fulfil the required terms & conditions of the tender process and also changed these terms & conditions for the benefit of the said OPs. Hence, all the OPs indulged in bid rigging. 9. Thereafter, on 28.05.2022 the tender was awarded to OP-3. As per tender conditions, the party to whom the tender was awarded, was required to deposit 10% as EMD and 50% of the tender amount within 15 days. However, these amounts were deposited only by the end of July 2022 i.e. after almost 75 days. Case No. 38 of 2023 Page 4 of 8 10. It was also alleged that OP-1 had submitted a bid of ₹4,11,12,121/-. However, it had not paid ₹50,000/- required for registration before the due date as can be seen from the date of the FDR. The Informant had also stated that the information relating to bid price of other bidders in the said tender, may be obtained from OP-4. 11. The Informant has also stated that tenders published on the website by OP-4 or any such organisation, gets reflected in the column “TENDERS” and remains available on the site. OP-4 also keeps its tenders on its home page under the sub-heading “TENDERS”, where “Tenders of Nagar Nigam Bareilly" can be accessed. However, it was found by the Informant that while all tenders from 16.08.2014 to 23.09.2022 were displayed with download facility, no information was available relating to the advertisement dated 05.05.2022. This, allegedly, shows ulterior motive and suppression of facts to the public at large. 12. Thus, the Informant has prayed that the case be sent for investigation in terms of Section 3(3)(d) read with Section 3(1) of the Act. Further, the role of the directors and officers of OP-1 to OP-3 be investigated under the provision of section 48(1) and 48(2) of the Act as they were engaged in anti-competitive practices under Section 3(3)(d) of the Act. Accordingly, the Informant has prayed to the Commission for passing a cease-and- desist order with penalty in terms of Section 27 of the Act. The Informant has further prayed that since it has incurred irreparable loss due to the anticompetitive conduct of the OPs, the Commission may grant it interim relief under Section 33 of the Act. 13. Vide order dated 08.05.2024, the Commission decided to seek response of OP-4 on the Information filed by the Informant alongwith its response on the following: 1.1. Name of agencies which applied for registration/renewal in response to advertisement notice dated 28.03.2022 alongwith their date of applications, date of security deposit/EMD, turnover details and their dates of registration. 1.2. Name of all the registered agencies as on 05.05.2022 (date of e-tender publication), with their turnover details. 1.3. Provide the information related to Bid prices/date and timings of the bids/IP addresses of all the bidders who participated in the e-tender alongwith their complete e-tender FDR details with dates.