Vinish Khanna Vs A&T Europe SpA (Competition Commission of India)
In the case of Vinish Khanna vs A&T Europe SpA & Others, the Competition Commission of India (CCI) examined allegations of anti-competitive practices under Sections 3 and 4 of the Competition Act, 2002. The Informant, Mr. Vinish Khanna, alleged that the tender conditions set by the Public Works Division Akola (OP-3) unfairly favored A&T Europe SpA (OP-1) by mandating a Memorandum of Understanding (MoU) with OP-1 for technical eligibility. This, according to the Informant, restricted competition, provided OP-1 monopoly control, and inflated project costs.
The Informant claimed that OP-3’s restrictive clauses effectively limited competition in the tender for constructing a FINA-compliant Olympic-standard swimming pool. Additionally, he alleged collusion between OP-1 and OP-3, enabling OP-1 to inflate material costs by 400%, thus wasting public funds. The Commission noted that similar concerns of restrictive tender practices had been addressed in previous cases, such as Shri Rajat Verma vs Public Works Department, Haryana, where PWD’s tendering process was classified as an enterprise activity under the Act.
Upon examining the allegations, the CCI evaluated whether OP-3’s specifications and requirement of an MoU with OP-1 could amount to abuse of dominance or an anti-competitive agreement. It acknowledged OP-1 and OP-2 (its Indian subsidiary) as enterprises under the Act. OP-3, being a government division, was also deemed an enterprise, aligning with established jurisprudence. However, the Commission observed no substantive evidence of appreciable adverse effects on competition resulting from OP-3’s tender specifications.
CCI concluded that the requirement of an MoU with OP-1 was tied to technical qualifications rather than anti-competitive intent. The absence of concrete market foreclosure or exclusionary practices weakened the Informant’s claims. Consequently, the Commission dismissed the case under Section 26(2) of the Competition Act, emphasizing the importance of evidence in substantiating allegations of anti-competitive conduct.
FULL TEXT OF THE ORDER OF COMPETITION COMMISSION OF INDIA
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.
