Competition Commission of India 9th Floor, Office Block1, Kidwai Nagar (East) New Delhi110023, India ...Respondent Present For Appellant : Mr. P. Nagesh, Sr. Advocate, Mr. Mahesh Agarwal, Mr. Anshuman Shrivastava, Ms. Geetika Sharma, Mr. Akshay Sharma, Advocates. For Respondent : Mr. Vaibhav Gaggar, Mr. Mrityunjay Manchanda, Mr. Prerak Khurana, Ms. Aditi Sinha, Ms. Kokila Kumar, Advocates for R1/CCI. Ms. Monica Lakhanpal Gaggar, Advocate for CCI. J U D G E M EN T (31st May, 2024) INDEVAR PANDEY, MEMBER (TECHNICAL) This appeal has been filed under Section 53 (b) of the Competition Act, 2002 (hereinafter called the Act) challenging the final order and judgment passed by the Competition Commission of India (hereinafter called the Commission) under Section 27 of the Act, wherein the Commission held that the appellant had contravened Sections 3(3)(c) and 3(3)(d) r/w Section 3 (1) of the Act. Cont'd.../ 2 Brief facts of the case 2. The commission received a general complaint dated 07.08.2018 alleging bidrigging in tenders invited by the Department of Agriculture, Government of Uttar Pradesh for soil sample testing. The complaint pertains to alleged bid rigging in respect of two etenders namely, Tender 2018_AGRUP_210583_1 (Moradabad) dated 31.05.2018 ("Tender No. 1") and Tender 2018_AGRUP_212591_1 (Bareilly) dated 18.06.2018 ('Tender No. 2"), invited for the soil sample testing by the Department of Agriculture, Government of Uttar Pradesh. 3. It was stated in the complaint that the following parties participated in the aforesaid two tenders of soil testing in Uttar Pradesh: (i) Yash Solutions (ii) M/s Satish Kumar Agarwal (iii) M/s Siddhi Vinayak and Sons (iv) M/s Saraswati Sales Corporation (v) M/s Lab Traders (vi) Edward Food Research and Analysis Centre Limited (vii) Atharva Laboratories Pvt. Ltd. (viii) M/s Newgen Computers (ix) Austere System Pvt. Ltd. 4. It was alleged in the complaint that the following participating bidders acted in a concerted manner in respect of Tender No. 1 and Tender No.2 and resorted to bidrigging in contravention of provisions of Section 3 (1) read with Section 3 (3) (d) of the Competition Act 2022 ('Act'): (i) Yash Solutions, Bareilly (Unit of Yash Ornaments Pvt. Ltd.) ("Yash Solutions"/OP1) Competition Appeal (AT) No. 32 of 2022 3 (ii) M/s Satish Kumar Agarwal, Bareilly ("M/s Satish Kumar"/OP2) (iii) M/s Siddhi Vinayak & Sons, Bareilly ("M/s Siddhi Vinayak"/OP3) (iv) M/s Saraswati Sales Corporation, Bareilly ("M/s Saraswati Sales"/OP4) (v) Austere System Pvt. Ltd., New Delhi ("Austere Systems"/OP5) 5. It was further alleged that there were numerous red flags in the documents submitted by the aforesaid entities for Tender No. 1 and Tender No. 2, but the tender inviting authorities preferred to ignore these aspects. Yash Solutions emerged as the successful bidder for the award of work for Tender No. 1 and Tender No.2 for the regions Moradabad and Bareilly, respectively, in the year 201819. It was also stated in the complaint, that in the previous year, i.e., 201718, Yash Solutions was awarded tender for soil testing for the regions of Bareilly and Moradabad, and Austere Systems was awarded tenders for the regions of Jhansi, Saharanpur and Meerut as a result of such collusive bidding. It was alleged in the complaint that the entities referred above, rigged the tenders of soil testing in the state of Uttar Pradesh by indulging in cover bidding, bid rotation and collusive bidding. 6. The commission considered the complaint and obtained documents like audit report, experience certificates and term deposit receipts submitted by relevant parties. Based on the analysis of records, the commission was of the prima facie view, that despite being competitors, these entities appear to have manipulated the process of bidding in the