Background

On November 30, 2023, the CCI dismissed a complaint filed by XYZ (‘Informant’) against the Surveyor General of India, and the Technical Committee for Purchase of Plotter (collectively, ‘Opposite Parties’) alleging contravention of Section 3 of the Competition Act in the procurement of LED Plotters with Folders through a tender (‘Tender’), by the Survey of India, Department of Science and Technology (‘Survey of India/SoI’). ^[1] 

Allegations

The Informant made the following allegations:

i.    Denial of Competition: The bidding process followed in the Tender was anti-competitive as the tender was for a particular category of product and favored a cartel of bidders who have a monopoly on the said product type; and

ii.   Design to Assist a Handful of Bidders: Bidding process helped a cartel of bidders, which consists of M/s Reprographics India and its two resellers namely Indi Innovation and Solutions and CADMARC Software Pvt Ltd., enabling them to quote exorbitant rates due to lack of any competition. Additionally, it was averred that better and cheaper products giving the desired performance are available in the market.

Interim Relief: The Informant also sought interim relief under Section 33 of the Competition Act and prayed for a stay on the tender proceedings or cancellation of the concerned bids till the CCI’s final decision in this regard.

CCI’s Assessment

The CCI dismissed the information and closed the matter under Section 26(2) of the Competition Act (accordingly also denying the Informant’s prayer for interim relief) inter alia for the following reasons:

i.    Stipulated Tender Conditions Were Justified: The CCI held that the conditions for the bidder as prescribed by the Surveyor of India^[2] were justified. In this regard the CCI observed that: (i) it is established decisional practice that a procurer is entitled to prescribe technical criteria, conditions or provisions within the tender documentation in accordance with its particular need; and (ii) the CCI does not interfere in such aforesaid bidding criteria unless the procurer is a dominant player in a relevant market;

ii.   Allegations of Cartelisation Amongst Bidders Were Not Substantiated: The CCI noted that while the Informant had leveled allegations of cartelisation amongst the bidders, there was nothing in the complaint to demonstrate the existence of such a cartel. Accordingly, such allegations did not warrant the examination of the CCI; and

iii.  No Requirement for Market Delineation: Separately, the CCI observed that a market construct is not necessary in the present case inter alia because: (i) no allegations of dominance or abuse of dominance under Section 4 have been made; (ii) no markets have been defined in the complaint; and (iii) there are numerous buyers procuring LED Plotters apart from the Survey of India.

[1] XYZ v. Surveyor General of India & Ors., Case No. 24 of 2023.

[2] The bidding criteria included a minimum average turnover of INR 60 lakhs (approx. US$ 72 thousand) in the last three years and one year of past experience. Exceptions from such conditions were granted to micro and small enterprises and preference was afforded to Make in India products and micro and small enterprises.