Nagrik Chetna Manch vs. Fortified Security Solutions & others

[Image omitted. See the official document.]

[Image omitted. See the official document.]

COMPETITION COMMISSION OF INDIA

Case No. 50 of 2015

In re:

WITH

Suo Motu Case No. 03 of 2016

In re: Cartelisation in Tender Nos. 21 of 2013 and 28 of 2013 of Pune Municipal Corporation for Solid Waste Processing
Against

• 1. Saara Traders Pvt. Ltd.
• 2. Ecoman Enviro Solutions Pvt. Ltd.
• 3. Fortified Security Solutions
• 4. Raghunath Industry Pvt. Ltd.

CORAM

Ms. Ravneet Kaur
Chairperson

Mr. Anil Agrawal
Member

Ms. Sweta Kakkad
Member

Mr. Deepak Anurag
Member

[Image omitted. See the official document.]

[Image omitted. See the official document.]

PRESENT

ORDER UNDER SECTION 27 OF THE COMPETITION ACT, 2002

Facts:

• 1. Information in Case No. 50 of 2015 was filed by Nagrik Chetna Manch, a public charitable trust, through its President Retd. Major General SCN Jatar, under Section 19(1)(a) of the Competition Act, 2002 (the ‘Act’), against Fortified Security Solutions, Ecoman Enviro Solutions Pvt. Ltd. and Pune Municipal Corporation, alleging bid-rigging/ collusive-bidding by Fortified Security Solutions and Ecoman Enviro Solutions Pvt. Ltd. in various tenders issued by Pune Municipal Corporation for ‘Design, Supply, Installation, Commissioning, Operation and Maintenance of Municipal Organic and Inorganic Solid Waste Processing Plant(s)’, during December 2014 to March 2015, in contravention of the provisions of Section 3 of the Act.
• 2. Upon consideration of the Information, and after holding a Preliminary Conference with the Informant and the three named Opposite Parties, the Commission passed an

[Image omitted. See the official document.]

[Image omitted. See the official document.]

order dated 29.09.2015 under Section 26(1) of the Act forming a prima facie opinion that Fortified Security Solutions and Ecoman Enviro Solutions Pvt. Ltd. along with M/s Sanjay Agencies and Mahalaxmi Steels seem to have indulged in bid-rigging/ collusive bidding in Tender Nos. 34, 35, 44, 62 and 63 of 2014 issued by Pune Municipal Corporation for Municipal Organic and Inorganic Solid Waste Processing Plant(s), in contravention of the provisions of Section 3(3) read with Section 3(1) of the Act. Accordingly, the Director General (‘DG’) was directed to cause an investigation to be made into the matter and submit an investigation report. The DG was also directed to look into the conduct of the other bidders as well, who have not been specifically named in the Information received and to look into the role, if any, of the persons/ officials of the bidders, who were in-charge of and responsible for the conduct of their businesses at the time of the alleged contravention and/ or who might have consented to or otherwise connived in respect of the alleged contravention or to whose neglect, such alleged contravention may be attributable.

• 3. The DG, during the course of its investigation into the matter, found involvement of a few other bidders in the alleged conduct as well as found the alleged conduct to be prevalent in a couple of more tenders. As such, it moved a note before the Commission to add a couple of more tenders and a few more Opposite Parties in Case No. 50 of 2015.
• 4. Based on the note of the DG, the Commission, vide order dated 28.06.2016, added four new Opposite Parties viz. Lahs Greens India Pvt. Ltd., M/s Sanjay Agencies, Mahalaxmi Steels and Raghunath Industry Pvt. Ltd. in Case No. 50 of 2015.
• 5. Further, based on the note of the DG, the Commission also passed another order dated 11.08.2016 under Section 26(1) of the Act with Suo Motu Case No. 03 of 2016 forming a prima facie opinion that four entities viz. Saara Traders Pvt. Ltd., Ecoman Enviro Solutions Pvt. Ltd., Fortified Security Solutions and Raghunath Industry Pvt. Ltd., had indulged in bid-rigging/ collusive bidding in Tender Nos. 21 and 28 of 2013 issued by Pune Municipal Corporation, in contravention of the provisions of Section 3(3)(d) of the Act. In this matter also, the DG was directed to look into the role, if any, of the persons/ officials of the bidders, who were in-charge of and responsible for the conduct of their businesses at the time of the alleged contravention and/ or who might have

[Image omitted. See the official document.]

[Image omitted. See the official document.]

consented to or otherwise connived in respect of the alleged contravention or to whose neglect, such alleged contravention may be attributable.

• 6. During the course of pendency of both investigations before the DG, the Commission received applications under Section 46 of the Act from the following Opposite Parties:
  • From Saara Traders Pvt. Ltd. who became lesser penalty applicant no. 1 in Tender Nos. 21 and 28 of 2013 in Suo Motu Case No. 03 of 2016;
  • From Mahalaxmi Steels who became lesser penalty applicant no. 1 in Tender Nos. 62 and 63 of 2014 in Case No. 50 of 2015;
  • From M/s Sanjay Agencies who became lesser penalty applicant no. 2 in Tender Nos. 62 and 63 of 2014 in Case No. 50 of 2015;
  • From Lahs Greens India Pvt. Ltd. who became lesser penalty applicant no. 1 in Tender Nos. 34, 35 and 44 of 2014 in Case No. 50 of 2015;
  • From Ecoman Enviro Solutions Pvt. Ltd. who became lesser penalty applicant no. 3 in Tender Nos. 62 and 63 of 2014 and lesser penalty applicant no. 2 in Tender Nos. 34, 35 and 44 of 2014 in Case No. 50 of 2015, and who became lesser penalty applicant no. 2 in Tender Nos. 21 and 28 of 2013 in Suo Motu Case No. 03 of 2016;
  • From Raghunath Industry Pvt. Ltd. who became lesser penalty applicant no. 4 in Tender Nos. 62 and 63 of 2014 and lesser penalty applicant no. 3 in Tender Nos. 34, 35 and 44 of 2014 in Case No. 50 of 2015, and who became lesser penalty applicant no. 3 in Tender Nos. 21 and 28 of 2013 in Suo Motu Case No. 03 of 2016; and
  • From Fortified Security Solutions, who became lesser penalty applicant no. 4 in Tender Nos. 34, 35 and 44 of 2014 in Case No. 50 of 2015.
• 7. Upon completion of investigation in Case No. 50 of 2015, the DG submitted its investigation report on 23.11.2016, finding bid-rigging/ collusive bidding in all the five tenders by the six named Opposite Parties (except Pune Municipal Corporation) in contravention of Section 3(3)(d) read with Section 3(1) of the Act. The DG also identified five individuals of these entities to be liable in terms of Section 48 of the Act.
• 8. Further, upon completion of investigation in Suo Motu Case No. 03 of 2016, the DG submitted its investigation report on 28.12.2016 finding bid-rigging/ collusive bidding