Mr. Vinish Khanna And M/s A&T Europe SpA; M/s Myrtha Pools India Private Limited; Public Works Division Akola, Maharashtra

Case No. 15 of 2024 Page 1 of 9 COMPETITION COMMISSION OF INDIA Case No. 15 of 2024 In Re: Mr. Vinish Khanna A-24, first Floor, Gulmohar Park, New Delhi-110049. Informant And M/s A&T Europe SpA Via Solferino, 27 – P.O. Box 7 – 46043, Castiglione delle Stiviere (MN) – Italy. Opposite Party No. 1 M/s Myrtha Pools India Private Limited Unit No. 15, Second Floor HIPROFILES Business Centre, 1/A, Church Street, Bengaluru, Karnataka- 560001, India. Opposite Party No. 2 Public Works Division Akola, Maharashtra Public Works Region Amravati, Bandhkam Bhavan, Camp area Amaravati, Maharashtra – 444603, India. Opposite Party No. 3 CORAM: Ms. Ravneet Kaur Chairperson Mr. Anil Agrawal Member Mr. Deepak Anurag Member Case No. 15 of 2024 Page 2 of 9 Order under Section 26(2) of the Competition Act, 2002 1. The present Information has been filed by Sh. Vinish Khanna (‘Informant’) under Section 19(1) (a) of the Competition Act, 2002 (‘the Act’) against (i) M/s A&T Europe SpA (‘OP-1’), (ii) M/s Myrtha Pools India Private Limited (‘OP-2’), and (iii) Public Works Division Akola, Maharashtra (‘OP-3’) (collectively, referred to as ‘Opposite Parties/OPs’), alleging contravention of provisions of Section 3 and 4 of the Act in a tender floated for inviting bids for construction of swimming pool by the OPs. 2. The Informant has stated himself to be a director in one of the bidders for this tender viz. M/s Renaissance Aqua Sports (P) Ltd., but has filed this information in his individual capacity. 3. OP-1 is a company incorporated in Italy. It is operating in India since 2016-17. OP-1 is stated to be engaged in business of making stainless steel pools. OP-2 is a company incorporated in Bangalore, India in 2019 and is a wholly owned subsidiary of OP-1. OP-1 is stated to be operating in India through OP-2. 4. OP-3 is a division of public works department in Akola in the State of Maharashtra, who has invited e-tender notice no. 30 of 2023-24 bearing E-tender No. 2024_PWR_ 988365_1 in early 2024 for construction of world aquatics (FINA) compliant, Olympic standard, pre-engineered Swimming pool having size 25M x 50M along by dismantling the existing swimming pool in the premises of Sanskrutik Bhavan for District Sports Office, Akola (hereinafter, ‘the Impugned Tender’) at an estimated cost of rupees 8.1 crores. 5. The Informant has alleged that OP-3, while inviting the Tender, has contravened the provisions of the Act by imposing certain restrictive conditions which require a Memorandum of Understanding (‘MOU’) to be entered into by the potential bidder and OP-1 so as to become technically eligible for the Impugned Tender. Resultantly, the technology and material for building the pool has to be taken from OP-1. As per the Informant, OP-3 ought to have provided the specifications of material to be used in the project and not the name of any particular seller or its brand. It is further stated that OP- Case No. 15 of 2024 Page 3 of 9 3 has used the word ‘similar’ as an eye wash, the tender goes on to mention the address of OP-1 in one of the conditions of clause 4.1.13 of the Impugned Tender. 6. The Informant has alleged that there appears to be an anti-competitive agreement in contravention of Section 3 of the Act between OP-1 and OP-3 due to which material and technology of OP-1 is a pre-requisite for carrying out the work under the Impugned Tender. This is giving OP-1 a monopoly over the supply of materials/technology. It appears to enhance the potential of OP-1’s related entity to bid and win the tender. 7. The Informant has also alleged that OP-3 has abused its dominant position in favour of OP-1 in contravention of Section 4 of the Act by putting restrictive tender conditions in the Impugned Tender thereby making it a limited tender disguised as an open tender. Due to this conduct of OP-3, except OP-1 all other providers (including Indian entities) of material and technology are restricted to access/ take part in Impugned Tender and in effect, fair competition is restricted. Resultantly, OP-1 is stated to have used this in its favour by increasing the cost of material required for the project by 400%. As per the Informant, OP-1 has in the past quoted Euro 2,07,000 (estimated rupees 2 crore) for construction of a swimming pool of similar dimensions. Inflating the project cost is unduly causing a waste of public money. 8. The Informant further stated that three bidders viz. M/s MEIT Multitech (a partnership firm formed in 2020 as per partnership deed), M/s S.D. Dounde Infra Pvt. Ltd. (company incorporate in 2018) and M/s Renaissance Aqua Sports (P) Ltd. (company incorporated in 1995) applied for the tender. Out of these three bidders, first two are selected on the basis of sole criteria of having MOU with OP-1, overlooking crucial aspects such as experience, expertise etc. It is further stated that the third bidder namely M/s Renaissance Aqua Sports (P) Ltd is rejected even at the technical stage. 9. The Informant also stated to have complained to OP-3 highlighting certain issues such as use of specific seller name, inflated cost of project, evaluation criterion not properly defined, wastage of public funds etc. However, no response was received regarding the same. Case No. 15 of 2024 Page 4 of 9 10. The Informant has asserted that inclusion of a clause mandating the submission of MOU with specific supplier in public projects not only effectively creates a barrier to entry for other potential bidders undermining principles of fair competition but also gives undue advantage to that specific supplier to charge exorbitant prices causing wastage of public money. The Informant has annexed documents such as copy of tender, tender documents of three bidders, copy of the complaint etc. in support of his allegations/assertions. 11. The Informant has inter alia requested to pass appropriate order(s) restraining the OPs from doing any further work in relation to the Impugned Tender and directing the OPs not to re-enter such agreement/ arrangement and/or discontinue such abuse of dominant position. 12. Asserting that allowing the OPs to go ahead with the tender will cause huge loss to the public at large due to inflated prices by OP-1, the Informant also requested for grant of interim relief in the form of order restraining the OPs from doing any further work in relation to the Impugned Tender. 13. The Commission first considered the matter in its ordinary meeting held on 14.08.2024 and decided to forward a copy of information to OP-3 to obtain its response/ comments apart from seeking details about: (a) Rationale for specifying name of only one technology and material supplier i.e. OP-1, in the Impugned Tender while there are other suppliers for construction of World Aquatics (FINA) compliant Olympic standard swimming pools and (b) Details about other players and market share data with respect to procurement of construction services for World Aquatics (FINA) compliant Olympic standard swimming pools. The Commission decided to seek the information pertaining to (b) above from the Informant also. 14. In the absence of response from the Informant and OP-3 within the stipulated time, the Commission, vide order dated 06.11.2024, provided one more opportunity to OP-3 and the Informant to file details/submissions with respect to para 13 above. 15. OP-3 filed its response dated 27.11.2024 on 03.12.2024 and the Informant filed its response dated 04.01.2025 along with request for condonation of delay in filing.