Case Law Details
Swastik Road Carrier Vs Central Railside Warehouse Company Limited (Competition Commission of India )
On perusal of the Information, the Commission observes that the Informant is primarily aggrieved by the conduct of OP in disqualifying and rejecting its bid in the first tender on the ground of “conflict of interest” and thereafter again providing for disqualification of bidders on ‘Conflict of Interest’ basis and further providing for disqualification/ blacklisting for next three years in case of breach of such condition.
The Commission has perused the conditions provided in the NIT dated 05.08.2021 and is of the opinion that term enabling the OP to disqualify bidders due to “conflict of interest”, does not appear to be unfair or anti-competitive in any manner. The Informant itself has enclosed a copy of the letter dated 01.10.2021 written by CMD of OP wherein the rationale for such term has been clearly spelt out. The letter clearly states that “…there were various instances wherein warehouses had diverted the customers of CRWC for their own benefit, thereby causing business loss to CRWC and Railways as well”. In fact, a cursory search of information available in public domain reveals that such/similar clauses/conditions are found in the tenders floated by other procurers of services as well.1
Even otherwise, from the reply of OP, it appears that there are several players who are operating in business similar to that of OP and the bidders who participate in the tenders for providing handling services hail from local as well as from far-off places in the state/ All India level. Accordingly, from the reply, there appears to be many such players who procure similar services and there also seems to be a number of players bidding for providing such services on Pan India as well as regional basis. In this market construct, OP does not appear to command any market power and as such the issue of abuse of dominance does not arise.
The Commission also deems it appropriate to reiterate that a procurer, as a consumer, can stipulate certain technical specifications/ conditions/ clauses in the tender document as per its requirements which by themselves cannot be deemed anticompetitive if the same appear to be commercially justifiable. It is, however, made clear that if any stipulation made by dominant procurer is found to be unfair or anticompetitive in any manner, appropriate action against such procurer can be initiated as per the scheme of the Act.
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