A Foundation For Common Cause & People ... vs Pes Installations Pvt. Ltd. & Ors on 16 April, 2012

[Cites 0, Cited by 1]

Competition Commission of India

A Foundation For Common Cause & People ... vs Pes Installations Pvt. Ltd. & Ors on 16 April, 2012

.. by. an MISS, 'A .Fc3uncEati«;;m for Ca;

% aggaasfrﬁa _ " calwwgvsrgaw t2G§VE§\e'§E$$EﬂN Q? smggg NEW $31.':-»::

ﬁated: §§~é€7"3¢'»'i.S!;..--~ A Founéaﬁon far Commmn Cause & Peczpie Awareness, $263,. Lajgsat Nagar £333'? -~ R New Deihé. ...informant 1' PES mstaiiatiens Pvt. Ltd. (FES) 13"' :<.w:. Mae Stcme, Rahtak Road, Gpga. Maharaja Agrasen Hospitai, iﬁunajabi Bagh, New ﬁeﬁhi

2. MED i\Aed§ca§ Systems Pvt. Ltd. (M89) K»-7?, {Ewan Séngh Compiex, Bid Rang Puré Roaszi.

Mahipaipgsr Exténsian;

Deihiﬁ . Meciicm Products Services (MP5) '2':/2, A-5, Rama Rmad, industriai area, New Seihi.

4. Secretary, Miswistw of Heaéth 8; famiiy Weifare, Gcwemment of Sndia, Nirman Bhawan, New Deihé. ...€)ppo5Ete Partiez U4 QRQER UNQER S;E____C'E"§GN 23' 3F THE C§M?ET§'§°EQN ACT. 2363;

The present matter reiates in informatE0fn»f}.. ' 5"

Cempetitircm Act, 2032 (ha-2re§nafter r?'3{§;j§'7 my ihereinaﬁcer refewed tat: as the Wfczrmants}: ag.3i.nst.PES _¥nstai§a;t_iQ:3_sV4 Ev_'{__.:, Ltd: {PES}, R493 iﬁedicai Systems ?v§. {MED}, Métziicai Pfoducts Services {MP8} anti Ministry cf Heaith 8: Famiéy Weéfare, Gmzemment of mdia aiﬁeging bid rigging in the tender for suppiy, instaiiaticm, testing and commissioning of Mstzsﬁuiar (Em-3rati~on Theatre {MST} and Medicai Gages _ Manifoﬁd Sysetem {MGi\/is) is Sports Véniury Centye {Sm}, Safsﬁarﬁmg Ho3§§?;a§, New Deﬁhi. The tender was ﬂuated thnzsugh Hsspitai Services Cmnsuitancy Carpcratian (HSCC) Limited, a governrnent P$§J on behaif cf the haspitai.

2. The facts and a§§egatiansA as peer the informatizm, in brief, are as unéew 2.3. it hag been submitted by the mformant that the prmcurement pmcess far Maduéér Gperation Theatre {MOT} and i\/§ecSica3 Gas Manifaid System (MGMS) in thee: instant case was initiated in the 10:5": Projact Menitoring Cammmee Meeting ciateﬁ ?;5.08¢2ﬁ{}B chaired by the then isént Secretary, Ministry of Heaith anti Famiiy Weifare, Savernment of Endia. Acmrding to the' inforsnant, even when M0'? 8: MGMS were cmnverztienaiﬁy two éifferent precinct gegments, the ﬁamrfsittae expressed an csgzsﬁnion thaiz smooth conrdinatian between me twiz works was required.

2.2 Subsequent§y in a meeting heid on 28.S8.2{3ﬁ€3 uncier the then Additimai Sirecter Gerxeraﬁ and Meciécaﬁ Superiméndent :3'? the haspitai, Dr, iagdish Prasad, it was recc3§§;e.dM hat in the haspitais s' :;B_?,' Eike, Goa Medicai Coﬁege, Goa, Hmspitai, Mumbai and §ns'i:Etute__c::_f T .\ x ,.

'.N;ew_De%h.§, to ensu:'eee,V.s.§ee'eth coerdinet§en,_,the werk cf Meeuﬁevr C3?"

WEQT) and Gas Pipeéine {§\!3€3é\z'£S) was awardesi as eembinee werk re a smgée firm. Awarding tn the informant, the informatien ghren 3n regard is the werk executed En these heepétaﬁs was not cerrect and it was one; used with e eurpeee to preceee with ﬂeeting a tender fer a cembined werk ertier.

2.3 As per the informant, at the time ef the ereject cenceetien, budget fer M0"? enﬁ MGMS werk was; fixed as Rs.8Sﬂ{} men and Rs.1?G.Qﬁ Eekh respeetiveiy. During the meeting eetee 28.08.2(}§9, hewever, this buaﬁgei: was enhanceci to Rs. 18.06 crere by cﬁubbing the me werks ef MOT and MGMS. Subsequentw, a cembieed 'tender fer MQT and MGMS was ﬁeeted by RSCC {Eadie} am 31.13.2899.

2.4 The 'informant has submitted that the eecisien ef issuﬁng teneer for a szcsmhined wed»: order" fer bath MST ans? MGMS ceueed exciusien of these ciemgzsenies whuich specialised in either of these ewe graduate from participation in the tender. Certain ere» cgueiiﬁcatien criteria were eise imzerpereted in the tender §n orcﬁes' to fertheer 3im§t the competition.

2.5 According ta the infeez'ment, eié these steps enabieci the firms named in the informetim ta menieeiete the entire tender precess.

it has; aiso been aiieged that sc3fr;:§e;"""f«%1,§,f iai Geeemment Cfefﬁcieés 3' «5 " , used their etzthority to farm , iiitate these firms to menieuiate the bidding proceéﬁ ..\ C) . _ <3 -

23% The't'§?nfm'mant . has bsfetzght out that en '12.-itéZ3.2{3G9,: .;.pre«¥_::s}{ﬁe.

meetﬁrtg teak mace in Safdarjtmg Hespitai in which tweﬁve firms had gertietpated. in that meeting, there was pretest ever the ceeditiens in the tender documents by every stEeg§e pmspective bidder except by the ﬁrme earnest in the information. Mast of the firms expressed their concern ever restrictive tender ctmditiens and gyessibiﬁty at carteiizetien tn the tender process in the said? meeting. Since the firms had expresses? cencems, they were asked te submit their cenceme in writing by the next werking day.

2.7 The interment has further tareeght cut that en 22.33.2869 certain amendments were issued by HSCC. However, Ensteae at addregeéeg the ceneems of the pmspective bidders, enﬁv such changes were made in the tender (tenements which further heteee the fines named in the instant ﬁntermaticm ta rig the bidding precees.

2.8 The interment has aiieged that PES, MUG and MP3 submittee tenders in cennivancte with each other er: 2§¢1G.2BG9. 355% was submittee ey MP3, emits ta matte beiteve that there was a gees.' respense (3 bidders) ts the tender process.

2.? The tnterment aiieged that aft the bideerts had te enciese e Manufa<:turer's Autherizetien Farm ea per the tender deeument.

However, MES eitd net eneiese important eutherizatioes fmm MES Stwizer USA, Terkett Germastyku testis UK, Nieteféex indie ens?

9.7'? .-, I '\'.° Isq' x1«t?".n c«em.~.~."

Mehte Tube Ltd. indie. at emzéese ereeer/vaﬁid ; Z: '_ :'>';;*. ' 3 Q . ' Authersztatmnv -';Fe:'m»5wes-- v§:'.{3et";- er 3-*.tre;§.§}ryker USA 3: .Sagk:e:fiim 3: ,5 ;;_A3ta'2~,g_PES__.§isQ; Cﬁfii¥"'§§}t:€?3Fifi?QSEif§.mi§?.g.§'f§§'§}iVf%i.§'iZ§"3{f§F§28ii:€}§"3Ss frqm ¥V3o«::§;§§~ _. _ 'V .

Technik --- Germany, Bitﬁume - Francs, Liquid Mastic - UK, sﬁxﬁetaféex

-~ indéa and !\.='£e2hta'"£"ube Limited, mdia.

2.1!} According to the infmmant, these deficiencies were mreréooked and the bias of iviﬁﬁ & PES were favmurahiy cosnsiéered for evaiuatimn. in the meeting of the Technécai ilcammittee hem rm 13.11.3369, bid Qf MP3 was regected ta camouﬂage as E? the tender pmcetiure was fair'.

2.11 The infsrmant submittecf {hat signatures :1'? aiﬁ the gersons mesent during the bid opening an 29.0§.2GG§ are not there on the cover pageferzveiape of the price bid of M98, which shsws that price bid 6? M38 had been iiiegaiiy regzﬁaced at a Eater date .

2.12The informant further submitteﬁ that an 13.11.2083. scommerciai evaiuatizm 0f bids submitted by MDB 8: 'RES was carried cut. "me aiﬁmzated budget far the Qraject was of Rs. ii} cmre which £31 adciitian to MQT 8: MGMS warks aiscs Enciuded warranty far 5 gears, Cxtammehensive Maﬁrztenance Centres': {mic} far 5 years anc§ aperaticma! and running cast of MST S; MGMS far 13 years fmm the date cs'? énstaiiatimn. Aga§:1stTthe aimve aﬁocated budget, MDQ kid {L1} was for Rs. 2¢§,32_,SS,£06.?3!~ and PES bid was far Rs.

35,24,€38,54~S.2?/-. Since the bid of mm}, was iawer, it was 'finaiiy awarcied the mntract.

>2'?

2.3.3 it has been submittesi byf "

is.' I. ,;"s L G3.1:Z..2{)(}'3. m§s~re;:>resem:.e,d the fe,c:s..?:h_e'§ eqiiiétienei w-arrent.yv--«1-a«.m§.._ ' gubseqeenvt CMC cost 'fer 5 years 8: eeerationsi and running test for MST 8; MSMS far 13 years, were never centemgﬁatee' as gzert ef the cost mg the pre§ec:t_. whereas in the 10"' PMC meeting dated

38.G8.'.ZG€}§ these were actueﬁy ccmsidereci. The Cemrmttee aim cemedereci that few additienai items viz. megretion Equigsments, misting for .€\'ir~co:":§itEonEng, HeLsmic§§ﬁes', end thirci eerie ueiiciation were iracerporated after erewbéci meeting in the tender, whereeg, items Eike integretien Equipnaents and thircé perty_\:eE§ciet§cm were a gent of e:'ig§na§ tender 8: not added after me-bid meeting.

2.14 The infermesnt eﬁeged that the committee ﬂeviated {rem Eta eriginei stand of pzsrcﬁeséng equipmeme eﬁongwith their eperationa! ané running Cast far 13 years and reducteé it §rc:>rn 33 {ten} years ta 5 {ﬁve} years. According ii) the infarmant, the committee, by rising so, mmeremisecﬁ with 'thee ﬁfe ef ::ru=::.ie§ MGMS 8: MST systems. Fineééy the ercier was mated on MDB fer Rs. 1€:3,11,32i,2{}6.?'3 with reduced warranty and operetiees and maintenance charges for five years onﬁy. This was done with an intent to misrewesent the fact that the order fer the weré-as was being pieced at approx Rs. 16.11 crere against the budgeted veme cf Rs. 10 stars. The infermant has further aiieged that after cemp%et§:::m of first five years, MDE3 wiié be ..wu,---.

asked to undeﬂake CMC ;, «ex: er.-,'t five years and ﬁneiiy the " '*3: ' tetaﬁ {test of the projsect '35 quoted by MEAD in the 9:

2.15 rice-evrd-ieg.ro.the §m"=0'rm:e.nt, inereer to~§«Us$:.iff~s,at§1ee.retes qur,;s_te.d.Tir.:_,_.,.., i .

the bid §tem~tc>--§tem comparison with other gsrhejects was eubreitted by Mm? emzi eccegated by the Smrt. C3f"f§cie§s witehrmt actuaiiy verﬁying the facts, Even this camperisorr was made fer §im§ted items and net fer entire tender vehge.

2.16 'ﬁre Errfermani: has furﬁfrer sebmﬁtted that an ﬁ§.€}1.2{}1€3, cerrtract was signed between Niirristry of Heeith and Ferrziiy Werfere end M33. The terms :3? rterrtrerzt were meriifﬁee' to further faveur MES vide ietter tiered {)1.G;?;.e2i:}:ﬁ written by en Under Secretary «:3? the Mirristry. Payment terms were faveurahiy changed and it was stipuieted that paymerate weuﬁd be made aspen réeiiverry 05* items instead of terms as prescribee in the tender, eecmrding to which payment was its be made after éeiivery, einsteiietiorr 8:, testing cf items. Accereiﬁng to the irxfrormant, exerrrpticm frem the third party énspectien was aim given, which not erriy prrtwéded cast advantage rte MED simte it come axrazrid incurring expensee on ecceunt {sf {hire party Enspecticsns and vaiicietiens, but the queiity e'? such a eriticei system was eke rsut at stake.

2,1? The informant aiieged that the cempanﬁee seemed in the infermation managed to: submit the tenders and price tries in mnnﬁvence with each ether as was evident {roam the fact that the was of these comgarxies zigpeeﬁeextihave been prepared on a

-'--:

. me» ~ " .

smgie computer. The § of these cempenaes was erase the same... Trzerree §fge.E". 7 xrrereﬁgcenamorrem§si:e.§ae$ rear:/Cir 21 £16 ., 4' "€Y$0§?3§3§'¥5;C3,.§V-§¥'T€TQ{$.if' .their..,_ti_d .s.te€u;tn.etetsttwh¥cth teéicate teatime of minds among them.

2.18 Based upan ahovementietsed facts, the informant etieged that MED, MP3 amt FEE, the three ﬁrms menttened in the Enfsrmattiee manieuﬁetee and rigged the tencier ;:tt'(}<Z$ESS in the instant case with the active seppert est' Gm/t. Dffitziais associated with the pmtect. it has 2335:) been aiteged byttte informant that WIDE}, MP3 anci FEE had tndutged in cartetisatiee and manéputetten :32' bids in a number :3'?

etejects eenceming ether govt. tsospiteis atse. Ttzege cempantes in ctontnivance with each ether were eiteged ta have mtated the §1=§(§3 in erderm successtuity with the centracts in ether pmjects emengst ttnemseives, thereby kiiting competitéen in the market in viotation at the ptevisicms at the Act, Mime Fecie Qgteiett

3. After catefutiy ctmsidering the atiegetiens raised by the interment end the materiaie en record, having farmed an epinim that there existeti a prime fecie case , the Cemm§ss§tm vigde order stated 3.5,G§.2G1@ refetreté the matter to the {ﬁrecter Ge under seetien 26 {1} et the Act fer cenﬁuctingtnvestigatiorgfthttﬁ-\_%,.t ' ' t «-_-

ietatitm est the previstons en' the Act' 2' 4-. eirrdieg at trrtrestieetmrr .-

43.. efter -receiving the direetﬁons from the Commtssierz, DE investigated the matter and submittee his report of investigation deter? 1Q.€}8.2Q13. te the Cemmissien.

4.2 Fer the purposes at trwestigatiert, tectmétei and 'Einar:c§a§ bids sebrrritted by the three firms were examined by the SE. in erdrer te verify the facts Erweﬁxred in this case, SS rzaéieeﬁ fer infermatien tram the various entities deaiﬁng in MST 8: MGMS. 38 test: irate cerrsicieratien the stsbmiseiens at Spcrts énjury Centre (SEC), Safdaﬁurtg He-spitel, New Qeﬁhi, the three firms aﬁeged ta be part of agreement in this case, ether firms titre Kari Storz Eneesceey india Pvt. i.td., Eegie Medieai Systems Pvt. §.td., EGC indie i..td., Aiken Medittech {3} Pvt. Ltd, Benson Metiicai Equipment {indie} Pvt. Ltd, Stryirerr inrite ?vt. Ltd. cieeiing in such predurtts. £38 aim teak into cenaéderetien the inquiry cerzducteci by the Centrei Vigiience Ccrmrrrissten {-(SW3) and repart of Serttptrtﬁter and Auditor Ge-nerei (CA8) en the meme of procurement at medicei equipments in the Govt. Hespiteﬁs induding Sports; injury Centre.

4.3 B6 has reported that in the irrsterét ease, SK had eiutzbee the tertrzter far procurement at' birth MG'? and NSGMS as a turnkey prrszgiect. in response tr; the tender issued by $362, tetctmicai and finenciai bids were submitted by PES Erretatéatéerts Pr}; Ltg. {P55}, tram Medtcaé Eystems Pvt. ' k <*'"'<.§*= Ltd. (M33) and Medicei PS). Atthcmgh Kart Store had 3,» vw; ' ~ ~.:_~_ )3 ~\_.

K "t T'. . .

eise gatsrcizesredrbid .de<;<ume{:3,t§; rt§° ~...c«t seergut ats tad. ' .1". r \ ..

\L'~ >__'_\ 35*' 4, §nvest§gat§en ref. {.36. shewea-tha'r the era er. MP3-rwraa regeereew-_:;ee.~~r§aes . .

greuhd that it did her meet the euaiifying criteria 3:1 terms :3'? enema? ternever and exeerﬁerzce er cempieting ene sirrrﬁar pre;'es;:t during the iasr three years. éénaﬁy, bias of Grey twahidders §.e. PES Se. M32} were seiecterzi as terzhnicariy quaiified by SEC.

é'r.§ Thea, eat of the three bieders. whe auhmitrea hide, cmh; 'Ewe h§r:§ders were aetuaiiy carhpeting fer getting the work. After anaiysis 0'? techrricei bias, the finenrziaﬁ bids 0% these 'awe cemeanies were eeeneri rm 2€L&1.2QG§. Baaad men the Eewest hid, Mm} was 'firsaiiy eeéected as the successful bidder 'fer awarriirrg (1? Contracts by 3&1': fer MEET Sr MCEBVES.

4.5 DG Envestigaizhan reveaieri that for the ieeai agents, who were queting en hehaif of erigiraai er foreign ;:3rirrr:ipa§ manufacturer er the imperree precincts, an experience eer'tif§r:ere rangirzg from $5 yeare fer the trusted praducts was ':0 be submitted aierag with the tender shewihg that the iota? ciistrihwcer haze e Sang term assaciatien or rieaiérrg with the erinrziear manufacturer fairing whee the bid wee Eiahie to be rejectee. Gary PES fuiﬁiéed» this maadatery cgueirficatian rtriterie ef 3-5 year experience with its erihcigaai Le. Stryker hrdia. hie Such exgtserierrce eerétihﬁcate was avaiiabie with MDD, hewever, its hie} was stiii accepted.

4.? BE fauna set that SEC'iiisIIm KEV ef the tender document apecifiecé the farmer er Manufacturer/Principe! Au'rherizatien re be subrrzihtecé by ,.--"'\"""'*-~ .-

.»-" '~s.~_ +1 ':~i<at-Zﬂirgf deaier/rota! agents 8; st§pu¥atedr'f;'§?§"g§tC¥r*£a%ia1"' 3 he firm authorized by the :3 {".:L~ Manufacturer was e§igib§e..t«f:€.;§e.;z§?te.r*%

- _.._.regerd_ to; «gesieus medicei ...eeu.i;:;mei,rii;s __:n.a;ie.§a;;:u_i5ee_ he gees; _ manufacturer. This cenciition mi' exciesivity was vieiated by we finei bidders i.e. i\fiiI3§'.i and ?*ES but were stiii considered as tecimicaiiy qizeiifieci by SKI. Beth these bidders i.e. M93 3: PES were having mmmsim euthojrizasien free: oniy ene priecipei, Stryises" india Pvt. Ltd. wiiich was a vieietien cf the specifiee terms and ceisditiensi ef the tender.

4.8 With regard is the izzemmon eutherizeiiien of MDD and PBS by 3ti'y§<er inciie, irwestigeiien reveeieci that Mae éiad requested $twi<er inﬁie 'fer autiiorizasien and since 9E3 was the exeiusive ciistriimitor in indie', it was decided that seem wouid be eistimrizeci for the afareseici Sic tender an beizeif of Stryker, but it weuid be muted through PES.

ii-.9 investigation by {K3 izsmught Quiz that commas': autherizetieri 'item the principei manufacturer was against the terms and ccmditieins Q'? tender which did net femur suiwdistributersiiip as imsierteken by MES through PES fer SAC tender, The fact of MQE) eititaining eiitherizetion 'irem Stryiser inciie threugii PES (their exciusive sieaier) eise eS'£3b§§Si":£'3*d same kind ef mutuai understeeciineg between the two bidders.

4.1% Accerciiegiy, MEG was iechniceiiy mi: queiifiee as neither ii; was having the manufacturer auiherizetieii fer integration iii)!" having the requisite 36 years experience with the principai. {)5 has submitted that PES was weii aware that being the exciusive cieeier cf Stryker iiiciia fer .-4--.

»\\.g..\..:C I ' , insteiietien it was the imiy eeeffii » (i not MDD} with regard to .

the 'tender requirement 01? tfiee iveiggears experience wiitiiithe

- a <'> s";s;rin::':'i;:aat.t~mamtt-scturert This fact t§t~att.;3ME%-D did».not»havsa..;:eQt;V§s§teg,__4 experience was wt-:~§§ krmwn ts PES. H€3We\é'€S:t', it did net abject since this wtsuid have restsitedé énta disquatititzation 0'? mm}. in tact Strykefs certification that enabied NEED to tguczte in SKI temiet was muted throutgh PES itseif. This shows that WES amt ¥\fiD--i3 were acttsai net mmpetétms but coitabarators. The ataresaiti facts ctearty estabiish that there was ceiiusion between PE$ anti Mm).

«$.11 tt is not distxutteci that 3t was PE5 wtﬁch had undertaken the irastaitation at Stryket integrated devices in SEC. This fact that instaiﬁation of integrated devmes was undertaken by PS5 for Mm) was aistx accepteé by PES in its statement darting investigatitmn. This estabiishes that PES being a ma§z::t ptiayet as a part at bid rigging scheme deﬁberateigz suismitted 3 iosing bid and aiiowed its cumpetiter MES ta win the bid. Subsequentiy, in exchange it abtained contracts far sugpiy fmm MED as is evident from the cepiest at accounts of ?ES pistes an retard. St was a dear Ease at bid rigging in the farm of sisbmnttacting whs-rettn ?ES submitteﬁ 3 tosittg bid in favcsut at E\»'i{}{) and thenaafter received subcmrztract from MSG.

4.3.2 Security at dactaments by ES with regard to the prescribes tender conditions, ptﬁce scheﬁuﬁes for the biii at quantity submitted by the bidders was dorset These gstescriised price scheciuies wauid have heart tiiieci indegaendentiy by them ' X: r 9!' ,.'§,_ _ ﬁx : *9 '.~zI2*' financiai bias. However, price s$'h§'?3u 'f_ I ..

_. _A,3Z§'){*3:§§'§'f$'E;V¥C§§§§_§§tf§.fi'13f7ﬁ§£§3g'_;§'t§§3§:3, &M.PS,»APESVwerettewfing verime t:emm.e.tt_.-..--...., __ _ .. ..

typegtaphieet esters. ieenticai typogreetztc.e§ mistakes in the ﬁeeneiai quetetiens shew that these were typeeittited at the same piece. "H253 eise estebtistaes that the three bieiders acted Er: ceneert white ﬁtting arse uitimateiy suttrnitting the tineneiai bids :3? the tender. Ties. etso refﬁects meeting at minds ameeg them.

4.13 Ga examinatten of the stzbmisséens by the three Opgaesite Parties on tygsegrephicet errers in the price sctaettuées, it is noted that eit the ttttee cempeeies have accepted the fact at simiiar typographical rmstakes in the prﬁezze scztxeduﬁest MP5 in its submissiens hes; confirmett that owing ta the shertage ef time in submiasien at tender, the settv etrsey of the price seheduie was taken teem the gevt. authorities eating the erebid meeting. Likewise, MED eiso stated that time for submission of the bit} was short and they unoftitziaity precureci the price schedeie format in sett eeey {mm HSCC. Hewever, PES has stated that since there were amend 7S items which neeﬁed ta be indiceteti in the erﬁee setteciuie, the officietis ef the tendering eempenies, MDD, MP3 and ?ES theugftt it ezetweeient tar get it typed tram the nearby cemeuter cafe.

4.14» Ga': the basis of the submisstees at PES, {K3 ccmeiuded that the ciaims made by M33 and MP5 that the sett new at price scheeuie termat was procured ueofticéeiéy from SECIHSCC is not cerrect. SiC,f£-tSCC had aiready provided net eniy the erie§.,:_teee.q;.g}e tetmet but aiso various A ' ""§)fOC€E§*§'ﬁgS;=»T§1E:pE"§C'€€;5C§3E'{§.L§§--E:'§€?*?mEi§C erescribed mg -the S_§£,£»iEi;'.3:££_.§-n,=_ their tender dczecument did mt have these typographécai méstakes as . notices} in the garice scheduﬁes at theee three cemgaanies Le. EVEEBEB, MP5 and PES. Similarity in the price scheduie fermat czf Mm}, MP5 and $355 was an account of their muttaaé cunsuitatien with each ether which _::€earl\,: refiected that there was meeting at mind and wiiusive actienﬂ $.15 D8 submﬁtted that the mmmcznaiity of the mistakes in the bid cﬁocuments submitted by the three bidders; was a gttung evidence to:

grove that there was coiiusicm amang them with a meme of rigging the ttendet of Six': 'W§'B§:';§'§ amounted ta a cttmtratrention at the previsions of section 3(3) of the Act.

23.3.6 {R3 has aim breught out that despite being the exciusive cieaﬁer of Stryker for the instaiiaticm of the integrated devices and one at the ma_i::>r ptayers in MGT ané MSMS, price queteci by ?*ES was much higher than MES. PES being the major waver arm principaﬁ agent at Steryker indie deiﬁberateiy suhmitteﬁ seubstantialtv higher financiei bﬁd than MES with a metive 0'? aiiewing SEC bid to be awarcited ta Mm}. This wag done eince the tender of the pmiect caiied by .§t3§\§A, enether hospital {subject matter in case me. 42:} of 2019* the other case invo§\;ing the three bidders named in the instant §n'formati0n) was awarded to ?ES eariier, it was ciecideé '_;':»Q:@,'.\ (-

4.17 D6 Cﬂndtlttiﬁti that the «4,\ x.-''-

Q ' 9 ' ~~. " 3?).

('$3 aise ﬁnds strong support p :':m '~ L3 ',3 .~ \ . 'e agtfég/*aud;§t repert of the CA5, '.¢<{§§:.;

\ 'K X; ('K ' \ .' ' _ 'ks '«-1x \.\'_*'i§¥,?;' :3 t;~¢;e',:;.f \\'__'l"'_,_'.-I~""

7=.-.:wsh§€:§t....Ea§§<S:. »E3hQU$.St£»S§3€3.C"3:€3d cartt-2§isa;t.Emt.-in .g3rocurement ::etE~«§s*t€;t7E?S. and MGEVES items by Stfj.

4.18 Accerding ta DE, the acts and contiuct tn' the PES, Mm?» and M33 do net shew that they were campettng with each ether far getting €Z3?'(§sEt"S. tnstead variaus cammor: typogs'aph§t:a¥ ermrs in the bids 3; ether evidence canfirm that they ceiﬁtzded by reaching an understanding and had acted in cmtcert. This concerted actisn between these entities, in the same bttséness tine, Enstead of generating competition, resuhted tn 3 rigged and caitusive hidcriing having adverse effect an the ﬂempatitimt in farms of section 3(3) id) at the Act.

$.19 On examining the Profit amt Less Accounts and Baiamte Sheets cf the firms, {)6 has aim fmmci that there were nutmerous ﬁnanctai and business transactitms with each catiter in the acccaurtts :3"? M39; MP5 and PS5 instaﬂatiens. This makes it dear that sit the three firms had mutua! tnusiness deatirzgs.

4.29 After anatiysing the information am the totat number of MOT and M«3M.S contracts awarded tax the different parties between 283'? and 2019, BS aise faunas that majority at such pmiects have been awarded and undertaken by PES mstaiﬁations fcstiewed by Mm) and MP3 En the East three years. This according ts D13 sstabiishes that aver as parted of time these firms were abie its {:€}i't"§Ei' mast at the MGT and MGMS prmgects in the variaus private and gmrt. hospitais.

:a:n.:v«»m--:.;e.e:se. f::e;..,.;b.e.. 5.-Umﬁieai ':9;-....Si.C.. .?f%;:.i=.=».escaiatioe, 3% cost -be.

successfui bidder according tea the B8 was the manifeetetéan 9% bid riggirag wherein the ccsiiuding bidders teak advantage by hiking the cast at' pmject.

4.22 EEG aéso reperteci that Stryker mdia had entered into a eieaéership agreement with PES in Eiecember 2038 by Virtue at' whﬁch 955 was the authorized/exgzmsive deaier sf Stryker indie. On examiswetion ef deaﬁershigrs agreement between them, {EEG noted that Steryker indie had entered Berta an agreement wéth PES with regard ta instaiiaticm ex"

integrated MST, ciause 3.1 (g) sf which restricted i3E§ is Si-:s'y¥~:e:' akme which irtmedes 8: resﬁzricts mmpetiticm, and canstituiee 3 vieieaticn of section 3(3) cf the Act.

4.23 Accerciing in BG, R": mdia there are mainwtwo cempaenies Le. Strvker india and Kari Storz which prmride expertise in integrated devicesfsaiutions in M032 Hetzwexrer, it was Stryker imziia wh§ch had better equipmemfsaftware, Sew cast and thug $5 predaminantiy mare preferred ever Kari Stare. Cm aeccaunt 0*? excmsive dea¥ership with Stryker, FEES was at an acivemtage as cempareci to other Emmi deems] agents who cemd not bid in veriaus §'i0S;2}§'€&:§$ for MST. Th§s has resu§tec§ in reestricting competitien as other cieaiers. whe wished to set for M€3T gzmjects couid not appw in temﬁers sf g0Ver51ﬁ1e'a;3vi»%3;§§Q3§jt§iL£. '_ »,x.\ .113:

. vik \)'Z-_ _»~'''' 3.

>' .' Regtttes at £3?-t£§'?*=&t'»'£§&.S « 2 .» . ~

3. After wnsidering the irwsestigatétm report ﬂied by the DE, wide its arder dated 2?'.£39.2G11, the iiammﬁsaicm decided to semi a copy 0*? the saici report ta' the gaarties for fiiing their rt-zgzﬁes, if any. The Carmnissiors aiso heard the' era} suézxmtsséana made by the cmmseés representing respective partiag. The replies 0"? the respective §33§"€§E§3 in brief are as unciew

5.1 tr: its respiies dated 529*.11.2(3i1, MSG Ltméted (:C}P=-2) has denied the aiiegatétms sf bid rigging in the tender reiating to suppty and instaiiation of MG? and MSMS at SEC. As per M33, in terms of Eiaust-2 2a tzf Setztian EX at the invitaticm ¥c:~r Bid {EFB} , the Ministry of Heaith had given 3 ccmcessétm tn the bidders that either they must have cszmpteteci at ieast me preject tzrf both MOT and MGMS in any one of the gavt. hmspitaﬁs ciuring the East three years 03° in case the bidcier did 'not have the experience at the shave weak: in as singie package , 2 separate mtiers for MGMS and M0? frunw the same govt. institution t0 the aama comman bidder ccsuirsi a¥s:.:s be censidered. Therefore, EFE pubiistxed by HSEC was not oniy for 3 stage cmttéaineti pmject at bath Mi}? and MSMS as has been aiieged since separate meters in the same government institutitm tar MST and MGMS WEEFE aim ta be cangiderecﬁv Further, it .6' was incorrect ta say that the Gaverngttextt has mt ﬁcaateci a mmbined \.

tender for MET and MGMS cm wk' tiznated by SEC was not théatfiifst 1?

-Reepenee Of @195 .

5.2 According te Mﬁﬁ, the repent gcsreparecﬁ by 'the B5 was ermneeus en faces. The metémdeiegy Iuneertakeeen Em: the $8 fez' carrying eat its imiestigetiens was untenebie and Eiiegéczai in as much as whiie coming to the c0m:ius§en that MDE me vieieteci Sectien 3(3}(:i).ef the Act, he wrengiy reéied upen the infermaetien abstained by him frem third parties who were e§ther cemeetiters of M93 or had eusiness rivairses.

5.3 MEED mmtended that e cemmon tender fer MST and MGMS was fieeted by the Gevernment in View :3"? the urgency and exigency 01' work 5:} as ':0 cempiete the pmject within a period es'? 4-5 months, since the Cemmenweeéth Games {CW5} were to» start very shertiy. Separate tender fer MG'? and MGMS weuid have resuitee En deiey in comgﬁetion ef the work as aise increase in the tender price.

5.51 I-Xceerztiéeng to M85}, fineﬁzeﬁen ef tee tecémicai seec:iﬁce'i:§en was dene by a Cemmittee ef exeerts in a meeting heid on 1£i.D9.2GG9 wherein a decisﬁen was taken fer cembineci preﬁect for M0"? and ¥\a'iGMS keeping in View that eeriier eise, e cembined tender fer NEST and MGMS had been decided in case of government hespitais Eike SLBEB, \!esen'§ Kunj, New De§hi,e LN}? Hospﬁtai, KEM, Mumbei and Gas Meedicaé Ceiiege. The issue ef having a need for commen tender was eése cieﬁberated in eietaéﬁ in the meeting ef the committee heid A g;.t\ persenahtzess from different S0§f8i':g'§E'Y'3§_' .;§,. '~ I x V 5.5 Bi: $133 further been stated by M93 that -the mandatorg:«««e§%g§b.§.§i.tg: _.

criteria was kept by the cesnmittee in view 0'? the prawiaus e;~:periem:e whereein the successfui bidder hasi either abandaned the proiect midway or deéayed szompieticm 9f the §r0j;e::t.

5.6 According is Mm}, out cf 12 mmpanies interested En the énstant tem:ie:', oniy three cizzmpanies ﬁnaiiy participated in the tender process. Gut tr? three, me camgany (MPS) was deciared Eneiigibie at the stage :3? opening 91° the technicai hm, and arziy twcs companies (MM) and PES) ﬁnatiy submitteé ﬁnanciai bids.

5.? Matt} has furthar submitted that the dﬁfferemte between the ;3f'§CE bids of the twe ﬁnai tender ;3art§::ipan'::s% wag of around Rs. 2.25 cmre. White M/5. PES instaiﬁation Private Ltd' had quoted prﬁces mainigg far the pmducts manufactured by the foreign companies, ﬁéke Q5»-H0 Med§c:a§ Corporation USA, SAGE Ciisﬂivi Etaiy; WED Mediai System {indie} Private ' Ltd. quested prices mainiy for the msducts manufactureci by --» PENLGN Limited, K-i'iKV}' TRELUX Privam ¥.td., Germany, \f0§(ES AER, Germ:-my, amangst anthers.

5.8 Accsrding tat: MDQ, §.§SL3a§§\;' NFPA-99C American pmducts were hégher in price and vaiue than HT£\!§i}E~0fi. campiiant UK praducts, This was the reascm that the price bici. of MED was fmmd in be ﬁmmar than W...»w.»._ that {if PES since the miter was p:;i,m*z§'":%i:'{'§I?"'g'% ' g Amesican baaed items .2 and gnmducts which were US NF%'§3f3S;EC~,.

xﬁ.

E \ *§\f§'-£393:=<---=5»u'bmEt3:e::i that: =--.imeerteet--~.~fer:t -'§i':'v'hi€-h.i.,~:§£;§{?§'§«§'i§:{*};{Z§;~_;;:;v, _ sensideration was that both PESA and M33 were representing diﬁererat princmais, whe were cemeetiters see xehese preciucets were beieg queteci by them in the $EC tendeax This shews that the price biés submitted by the ebeve two companies were totaieﬁy independent of each other.

5.3.0 MBE eubmitted that {)6 feiied ta take inter acceunt the fact that Medicaﬁ ?r::>du::et Services has' already been rejected at the stage of epening off the Technicei Bid itseéf and hence M/s Meéﬁcai P*r0du::t Services ceuid net be a part 0'? the alieged certeiézatier: er in me rigging. Whiie eniy M93 and PES submitted price bids in the tender 0:' SK; Safdargang Hesspitei, the entire report ef the EEG proceedecé on the basis;

that MP3 amng with MDD and PES induiged in the ceiﬁusive bidding and gcsrice rigging.

5.11 A<:§:e:":§ing te MED, there were new four mejer ﬁrms, nameeiy, M93, MDB, Bensen enci E-'ES whee deait in MST and MSMS items in the market. The number ef internatienai pieyers in the fieid was eise very' iess. There were few piayevs who gaarticipated in "me bidding precess. (Tm the basis (3% particieatien ef ﬁimited number :31' firms in any 'tender, it cenenet be said that aﬁi such 'firms had certeiised in ether tenders. it Cannes': aim be said that the compeetiticm wee swght ta bweggﬁgrtaiieed by MED. Limited piayers ff K avaﬁabie in the reievant merkegs' '§.='%: '" ""

'xii?

'§&tiiZ'§sZ'»!'S\ '£¥::;--ate,i:§.:.:.;;§;3;..t._.x:.a_ri{zu.s {it2ve.€i3nt§.~:._€:it ".§.j§1(3'S;;}§.t-833:'-i-n §,i'7}{Li§a.,'3:§f§,t$iS;,V'§v?3:§;?:

qtiestian at an aﬁverse affect on mmpetition in inciia did mt arise.

5.12 Accmding to MED, in the present case, the garicis bids quated by MEET and PES itaci a di'Ei'ereni:e at Rs. 2.25 crore, aimcist a difference at 23% Had thaw been a meeting between MESD and PES , the difference in the price bids quaiteci by the twin firms wouici have been much iess.

5.3.3 As regards ti:-zrms and cendititms Qt tender mauidt-id ta its benefit as aiiegeci in the inftitmation, MED submitted that terms & canditioits were is be determined by the tender, issuing authmity as every temier is gecuiiar to the requirements of an irtstitutiors/czrganizatiirm. The autherity issuing the tender is the best judge at the terms and cimciitioris to be incorporated in a tencter which every bidtierf partizzipant has to meet. it hag been heid by variaus courts inciuiziing the Supreme Court of india that even the murts cainnot suppiant their views concerning the mandatery qtiaiifyiing terma and canﬁitiatts at any tencisr.

5.14 it i5 further submitted that sectism 3{3} cf the Act permits the Cesmmissien to presume vioiation oniy if a trade practice in reiaiticm tn it reievant market taiis font to the gzsarameters iaid detain in ciauses {3} ti: {:5} of section 3(3) at the Act. Therefmre, evidence gathtared and docmttenta ceiietted during the irivestigatimn have to ba evaiuateci from the t Tee'Directe-t.6e.e.ete:ttei¥ee,te gather s_ettie§vee_=ta& t:ege.et.--evét§ee-ee er: ee.te.-....

in this regard.

515 According te Mae, the facts of the present case ode net peint out, *estee'E§s¥t er suggest that there was 3 tacit etei amcteretending between Mm), P85 and MP5 in respect et the eiieged price rigging and eettusivet btdeing, as eeught te be made out by the £36. Ne facts have been ereught terth er estatzitstted by the £36 to ehew that there wee such an understanding, which Sect tee aﬁieged certeéizatien.

5.1% On the issue that teeth MBQ and £355 sebmttted bies cm behaitt ef same feteten prtncieaifmemstacturer, S'E1I'\,:°§{Ei' indie ?.Ltd., in vieietien ef sectien XW ef the tender ciecuments, tt has been eubteitted by Wtﬁﬁ that fer the integrated items used in tebricetien and etectien of MST, there were very iimited menufecturers at the game in the ietemetéonai market. The prtncipet distributor of Stryket was ?ES in mete and pursuettt' te the tender ﬂoated by Ministry ex' Heaith, in respect at the Seetts injury Centre ' at Sefdarjang Hoseitaé, it had eppreeehee St§'y§<E5i' for autttoritettien te eeebie it te eetticipate in the SE tender. Aceereingiy, Stryker indie issued aetherizetten certtiﬁcete dated 2?t.1G.2€}G§ to Et. Since 5t?"3.'§{t3i' has a ncm~ext:¥usive distrﬁbetotshie agreement with §7'ES, in terms of cﬁeese ,/eeiet 2.2 et its Agreement with PES, Stryket had the tight to eppeiet other deaiers or eigtribtttorgfetegeteggetien, sates and sepgety of 4 A <.1.'*""~°jtr L\', . _ 41 \"~"{:.

. .

pteduets zcéentscat to the preductiﬁfﬁ . . . ,; §é_..~:l'._Z;. _.M.§--.Qg..,ﬂee-her1.esu¥:2m:e:ee.. f:.?zet- .persee,et---.:. te:e:.-eee -- .cEis.e.:ss;iee-g .5tr,:gise.r,.e grerrteci euthe:°§za:tion te it to cguete its integration iteres. Hewever, in event of award ef the tender , the zsuepﬁy of the ietegretee items and insteiietien ef the same was te be dame by Stryker through PES 3% FES was the main distrieuter of Stwker and was having the necessary eeeereise, exeeﬁence and manpower for erection and Eesteﬂetiee ef tee prodeszte of Stryker. m fact tee manufacturers' autherizetiee form stépmated that the said goods te be eroceree by it ceeid he seemed threugh chermei partner ef Stroyker viz. PES.

5.18 As per the eeeteetions sf M33, fer integrated items 0:' Stryker, it had been autherized by Stryker te quote for 8: on its behaif in reseeet ei' the tender of 515. However, as regards the ether items of Stryker to he uaee in §V§€I)T and MGMS, the same were quoted one; by PES. M33 was authorized to participate in the Sit tender by Stryker in respect of the integrated items emy, which was eniy ene pert ef the entire iteme 1' eredects te be used in the entire turrrkey ereiect pertaining te the S¥C. 5.19 {Be the issue ef reqmrement of being a eistrihuter of the eriginei foreign principai, for at §east 3~5 years, it has been submitted by M03 that the coneétéen stipulated in point 8 ef teeeer deeument was that the Eedien agent, as the distributor ef the foreign erincipei / manufacturers, had to be the distributer ef the same eesmpeny for at ¥eest £35': 3 years.

{Ir faix equated the 'two. in the instant e'e'§e'~f '%"1a§:s%bm§*tted a Eetter es'?

"x, .k\ K. r M " 'a:':§'t'%1::2?'if§I=*fro'm'°~Stry%»:e r, V £3' £3 --§'::e§£'§g *the~ ci'istri--$:3ui:ar a ﬁd ma :§ mi . age-net _~se*§--

Starker haé the rehszvani: distributorship of Stryker far more than 3 yeam "i"§*ae finding arriveci that by the B6 to the effect that 3§¥'i€:E £10 emeréence of 3-5 years was avaﬁabie to it as the distributor G? Stryvkar and hence it cauié not have particigaateci in the tender was énccrrect and a misreading and misinterpretatﬁon of teméer ccmditions.

5.19 M33 argued that white an ans: hand at Page No, 38 63% the repmt, the {H3 stated that PES wag the exclusive ﬁgeaier of Stryker, an the ethar hand at Page N0. 533 :32" his repcgart, D5 gnointed out that the deaﬁership agreament. 03' PS8 wﬁth Stryker was a ncrrexciusive deaier avgreememt. Thug the findings remrded by the E36 that smce PES was the excéusive céistributar m' Stryi-tar far instaiiaticrz m' the integrated devices, hence the price bid quested by PES En the S§C tender shauisi not have been higher than that Q'? MED was aim fiaweci.

526 According tn Mm), whiée an exciusive and suie distributar 3? a manufacturer, having the requireﬁ expertise am experﬁence wiii aﬁways quanta a higher margim' prafit rate, an ageht or a sub--distribu'mr cf the same manufae:'+:us'er, next havmg the required expertise, mamgzower anﬁ instaiiaﬁon experience of the product vuiéi aiways eguate a Sewer margin/' gzarofit for a rate, product/items purchaseci dire(:":':§\; frm':

the sam S€:h£i*dL$3eS ea' Mm}, P55 and MP3 having simiéar typograehicai mistakes £4. conciusien er meetirrg of mind and eeneerted amen errteng ah the three cempanies was iﬁﬁegicar he Lmreasened. Since the price schedeies ieseeci by the terrcierihg eutherity did net contain the descréprien of gases stated in the biii of quantity, same was 'am be typed in the rzhert of the price scheduies. After the pre--h§d meeting was ever, MED Direcmr Sheri Regan Verrrre instructed his ofﬁciaﬁs to gs to the affine of HSEC5 Noida and request fer price scheeuie with em 5% Chraetitﬁes defy irrcerperated therein. instead of visiting the efﬁce of Ncziszéa, the efheial vigited a cyher safe and get the pricing scheduie typed from the corrxmeh typing pm)?

Where the mistakes crept Err.

5.22 M39 has further centended that mereiy because the price echeduie wag gm: twee frem a common typing peoi, St does net ieaci to the comziusien that there was a meeﬁng sf mine er a ccmeerted actien by ah the three entities. MW admittediy rzeuki net deer the te<:hn§s:e§ specification bid and was net in the ﬁnai reekehiswg. Accerdihg m MED, the price bids were ﬁiied Err by it in its awn effirze and the report in any case does net indicate that the prhtes queteri by the three cempanies were afso an account er cencerteé acrien. There ﬁs he evﬁcience as §'3°.'3¥'{'Ip3¥'i§":'ES.

' "§:2?§.~~'?'=:=*'--'L-'=€'«.r¥#3?'-5ie€§sr0' '--"e:'r::~h'st--e-r'z*::i~eee »*rhe"et':tth'efh-rs-cﬁih-gs ef Q{3..ehrea;re:**§:h=e 5 ﬂea ee e:::§ee-.ue.- :;.e=:°;-~--fi e~e«e»e»i-e.§-eeiee § §§§§'§ﬁ;~;.*§:}&E,VX§E%E§§1 . M B S. e mi P 53,»-«§e__ has . _ . ;. 1; _~; . ._ éaeen argued by MBE that its finaeciaé deeiirzgs with PES were entire-ﬁy busmees reieted. in February; 2GQ"?, it had given an advance 9? Rs.

2,.5G,BOS,'-» 22:: PES fer ;mrchese.0f Gas eutiet poént {NFPA~§§c cemeiience ' of emsce make} for area of its ;:sr0§ec;ts in which the custemer had speeificaiiy asked fer sueeﬁy ef NFPA-8§<:. cempﬁéant pmducts. Since it deais in HTMGB»-01 cemeiiant preduete form Penien, ELK' make, it was iecking fer the authorized agentsf dﬁstrihuters of E\§FPA~§E3e mmgzzﬁent pmduets in indie. At that paint of time were were cmiy three agente ;' déstréeeters deeﬁeg with NFPA--§9c cemgziiant emeucts, viz. PES msteéiaticms Pvt. Lie; New Deihé ~-- distrébuters ef AMBCQ, Canada and {EH33 Corporetiee, USA fer NFPA--§9c cemeiiant preduets, M/'s Medicai Product Services; New iﬁeihi --~ dietributers ef Aiiied Heeﬁthcere' Preducts lee; USA for NE=PA~9§:: cempﬁant erecﬁects and wife Benson Medieai Equipment india Pvt. Ltd; New Seﬁhi »» dietributers ef BEACON MEDAES;

USA fer NF?-'A~§9c: compéiant pmducts.

5.24 The advantage ef presteriee NFPA~99c cempéient predects fern': ?E5 énsteiietien Pvt. Ltd. was that PES used te seii ereduets of AMECG, ilanade having Iewer price as {:empe:'ed te simiier NFPA«9§<: cempiient products. it was en aeeegmt of this fact that in Rebruery, 238?' it had gwen an advance te PES far' purchesee of Gas ouﬁet peint {NFP£a~9§c compiiance}.

Sesidee this, M98 had eise precured }j1.£he;g\eer 2937 certain items .3 .)<;\'j {)9 manufactured by PES to be used };i;}:3ee *-~fEE%a\':re:';. Hewever, such to \ 'ezieieees trensecticen cannot be tea" 'eieiseifiseém manufactured by Stryker far instaﬁation in SE, EVSEZEE} has stated that the printipai distrihutar of Stryker inciia wag FEES in india. it a;::pma+::§1ed Stryker as weiﬁ as Kari Storz for mice quataticsn against the tenﬁer gpecification cf SEC as aim manufacturers' authcsrisatisn ta enaiaie it to participate in the SEC tender. Since the price quated by Kari Star: was higher, E? tack quote fmm Stryker who indicated a much iesser and competitive price. Acmrdingiy, Stryker issued it the mamsfacturers' autharizatiszm certificate dated 2?.1(}.2{}%39.

5.26 Accarding ta M89, when it cantacted Stryker far suppiy a-mat instaﬁatitm of integrated Etems far SEC pmject it was infarmeci that Stryker had trained PES engineers for speciaﬁzgd jab of integraticm. Héawever, me {If thg empioyees of Stryker Mr. Divakar Rana wcmﬁci be aim fuiﬁy Envoﬁved am} wczsuid be respensébﬁe far aii instaﬁiations. ﬁt wag aﬁscs énfarmed that integratien items had in be procured fmm any 92° its exciusivra distributor. it inétiaiiy contacted Rehit Surgical Private {jmited far suppiy and instaﬁation of integrated items. Since Rcahiil Surgicais infarmeci that they were unahia ta instaﬁ integratien items, it appmached PES and for that it aﬁso paid ammsnts in advance in PES, 5.2? MDD submitted that PES being the exclusive ciistrﬁautesar of Stryker, the pmfessiona! expeﬂcise far instaﬁing the Erm:-:gratec§ items as? Stryker . i \\_v,-

<1} 0 ~¢ P' with PES arm therefme MED was c0m;:f;§i§_Ei A 'ﬁe $'§:r~§<:es of WES far . . TT T T T T VT'. ":8"?

K T. * :;§}'';

'27 U .2 V ,Ta,nt.eg:a-man \~ <~-»~-.>-..-§nsta..%iat§.c2n of«.'th'eV»~ivtem--t< .E3.&"-3{.'.Ttt.'tg§t1§:~»'é€}--t§7§:&»$*€-£7'§£5<«'&t";:::&;'§{§'t§i3§'t.:;'§{3.£¢§'B'3x'.§iii:3vp.&¥'T'E at v.;_;

the turnkey job avvatded ta Mm}. Thus, sub~<:om:s*a<:t awarded t0 PES was that under any agreement, but at '€t'tiE insistence at Stryker.

5.2% Sr: the issue at ditfetrence in Catt at pmgezzts cf gavetnmtmt hasgsitais avnd prttaate hmsmtaﬁa, Mm) has stsbnéitteé that the cost at the pmject was comparatively higher in case at the farmer in View at the adzritttottat and stringent coniiiticng in tenders at gmremment hcsspitais itke Bank Euatantees, Security ﬁepesit etc. The mica quieted at any medicat equipment varies depending uptm various fatztcrs such as technicai s.§ec.ifit:at§cms, accessmties, warranty period, §er'éoe:3 at deiivery, terms at deiivety, payment terms, tiucttaaticm in exchange rates, made of {tr-ztivery etc. as has been stated by the Ministry at Health and Famiiy Welfare; its tight at thts the , ﬁndingg at 38 that WED hast escaiated ttte cast of ccsmpottents tupptied ta SEC in erﬁer to take advantags at tack of specific cast guideitnes under some uncierstancéitsg {mes mt hcid geared.

5.29 M80 submitted that tt had not benefited tram change in tencter mnéitéans reiating tce pre--de§§ves'y tnspectimt, payment terms etc. Gm the contrary it had tc: absorb huge Sasses in terms of fut? advance payment made by them to the fereign minctpais ¥3en§0n Ltd. Ltti. and T:'§§t:><, Sermany. Fturther, tt had iﬁ pay adciitianat amount to the fmeégtt principais for getting extra hczur warking of their mangaower in UK. ané {Ba-rmany tce get the products de§§vetedf.§§§t*§f-"' vaﬁue at Fenian incurred a $055 of 5% on acccauttt Qt '§.;'E&'§:':'ﬂ*;%<:~-~'e'rm? ~T'ri¥u»x'."€3e'r'm-any -Vn2e.S<e--'::}f::gs-ro'c€evei--5«e eieee ~Geveeemem:...§1e:d.,,... _ _ _ refuseci tee give the benefit of the VAT emezmt in it.

53$ Accerding te Mm}, it was met ezerrect 13:: say that price chergecé by Stryker was on a higher side. The vaéue of the cemp§ete mcsdzﬁar 'integrated operetien theatre as awereied to it was Rs. §,05,€34_,352!-- and thee vaiue ef the cempiete medicaﬁ gas manéfeid systeem as per HT§v2{32~S1 was Rs. S,21,21,?28;'--. The amount queteci and the vaiue of the tender awarded tax it was at most competitive rates, as. can be seen fmm enether tencier of cemméssiening, operatien and maintenance :2? centreiized mediai gas eipeiine eystem with menifeici mam unﬁt awardee by Semi State Cancer institute en 28.63.2008 for an ameent ef Rs. ££,?1,{}8,920;'~. There is no instencee :3? any cost esceiatien by it, as has been eiiegeé. its price bid was eccepted since it was about Rs. 2.50 cmre Bess than the price bid 0? PES.

5.31 K has aise been submitted that the mere fact that the SEQ 'gender was awarded to it: and the temier ef JPNA was awarded ':3 PES, zzannot indicate any bid rigging er coiﬁusive bidding, According te MDB, going by the §§§eg§ca§ finding arrived at by the SS, it weuid impiy that ceniy cane cempany sheuki centﬁrzue tea be awarded tenders in aii ergenizetiens and if any other cempeny is awarded tender, then the same wouid tantamount ta certeﬁizatien and indicative ef bid rigging.

eciared void, =?iZne:e.,»re.e.er?:: deee net eeteeizisn: ere;--.-kin--e«re%. .e--eiE£~ -i e» rnarirees in -i.n«.»:ii=e--.-«.:«:~?Z?£:2e ..

finciings recerded in the reeert, regarding seetien 3.§{3) ':0 come te cenctusien that MEBB, aieng with PES and MP3 vieieted' section 3(3) (9%) er ' the said Act, wee incerrect in es much as the BS wrengiy seine re cenetusien that the acts of the aeeve three rzerneaniee resuired in an eeereeiebie adverse effect en the cemeetition.

5.33 According to MED, the report ef the E36 ciees net esrebiish or prove any inetenrze er certeiizatien errzeng Mile), PES and MP3, wne in feet were competitors in the bid. They represented their awn fereign erincieeis 3: foreign manufacturers and were strong competitors ef each other. There was recs evidence er a written or erai agreement among them and B6 in its report had met been abie re sebgtantiate the same by cegent er reiiebie evieence. in any cage the aiiegeri agreement does not iimit Ea centroi the price ei' geeds in any manner. There'fere, necessary ingredients of E: certei were net made aunt in the facts of tire eresenr case.

5.34 MES has further submitted that 'there was ne evidence 're preve bid reteiien among the parties named in the inferrriatien as stated in the reeert ef the EEG. The reperi fails tie expiain as to mw entry fer a new entrant has been barred, in View of the feel: their rm eemperitor was preciueed from participating in the tender bids. The report er the D6 te the extent it statee that M530, PES and MP5 had eiirninatee eorrrpetitien by their tacit understanding, W 1%;

supperteci by ciocurnentary evidf 'E: ' 7 . ﬁr ' 8:35 z-~Aeee..re»;§e--g.-viee ..ME3D=, there:-.wes:ﬁe;-..Ae§.§.eget§ee;~eerv- ;es:icée_eee;: , ceiiudeci §n getting the terms and conditions erafted in its fewer in respect ef the SEC tender, so as te suit its er the requirements 0? ether twe companies. it came': be biamee er heid respensiitsie fer the teneer cendﬁiens in as much as the same was within the exeiuséve demam ef the gevemment er the tender issuing authority.

538 The findings 3*? coﬁectixse aetierz by the three ccameanies, net are cemeete whﬁch other, was eése devoid of any reasening. The D8 had feiied ta e::.o¥§e<::t or ereducee any evidence he shew that some menetery gain was agreed to be seared by the above three cemeenies in furtherance ef their aéieged tacit enderstamiing.

5.37' Accerdéng te MEX}, the fact that the bid deeuments were submitted by Mm'), MP3 and PES in another tender in WNA hespi=:a3 around the same time does net §n any manner impiy or indicate any eencerted eetﬁen amcmg them. Suizzmissian of tender ages at almost the same time in the tender ef EDNA (fees not iead tc: the conciusien that the gzzsricze bide submiizted by the three companies were rigged or were péarmed in advance. There was no undereterzciing with PES tn the effect that smce ﬁwee tender cf ..iPi\§A had been awarded te PES theirefere PES submifited a kzsieg bid in the tender of 3:5.

53.38 MBD has furiher submitted that the reperts of the CVC and the ~ ' """

)

1. .- /\ t'?3}iErding are eppertunity ii'

93..

nnete e reized upon an me.

, .~-».;aa§a3e:§t€e'a.:£:'§ e:re;:--:§.g§::t-«:ref- rebuttal .heeing.:.beee.=eg»§;\sen.:=:te.»..it;Ettaete:::t:.et---.;.:=.e;eee numemus occasiens where varieus other compames had participated in the tandem ether than the 34: companies,/tirms meetianed by the CVC. _Sim§Ear¥y, tenders have been awercied ta its ether cempetéters size) for making segapﬁies te government and meats hospiteﬁe. The reiience piaceti by the B6 on the seié reperts was therefore §m:on"et:t.

5.39 M99 denying aﬂegations at tarteiisatien, submitted that there was me cencerted entice en part at '£§'}t'e€3 mmpenies 35 they were stiff mmpetitots. The report at 38 was not supported by cegent evidence, éackeﬁ materiei partieuéars and was based on essumptiene and ptesemgtiens, faﬁse and imzarrect cemments at its business riveis. There was no inciicetien of an agreement in existence between the three gaarties, M33, PS3 and MP3 which caused an eppreciebte adverse effect on competttien.

Reedy by wife PES instetiatiens 5.238 in its repiy dated 28.11.2311, M/5 PES insteitatiens, an the tines of M33, contended that the inferetatiem in the instant cage was ﬂied with M motive and fer getting up business rivairieset According to PES, its business riva5s were ﬁnﬁieg it very difficeit to compete with its meritarieue perfm"mem:e and hard ware and many at them have even eat been abie te meet ;:2re--cgua§ificaticm criteria.

.>"" 1 ' 5.41 As regards 'mvestégetécm by Bﬁgitti' _~ ﬁg'?

'ii eppiied for carrying out investigagiog-§' h " 'A ws. investigatiee was;

ﬁe = tte*:¥-t:i%'*gt'-riamtttvt §3i£E'1t?'€3tZ3§E3€).€tt.t n.§t~,; »G.'§.--it3e§?ttgt¥=§t&:&t'{§5 .tx'§-{§;3't?:£§§~§V-it}-ﬁe tender in question, there was my accastan for the aiiaged meeting at minﬁts among the three parties named tn '§.'§'tE intarmattan, stnta {me at the partées, §y°iPS was unabie ta meet the quatiﬁcation criteria and was actuatiy 3 mmpetiter. The fact that MP3 even fattest ta meet the eﬁigétaitity criterta of armuai ttmtcavst at Rs. EH36 tatzh ccsnctustilveiy proved there coutct not he a meeting of minds amt ccmtzerted action between them ané there was :10 tnccasitm for the same.

51%? Eestying the charge of overpricing in' the cost at szsppéies, it submtttect that it deait in tmspétat equigament anti pmducts at US make and because at stringent US standartcis, the pttxducts suppiiect by it were cogttier than mtheta. in tha instant cage, tha hcsgpital preferred equtpments of UK make. Since its products were made in USA, tthey were costﬁier and ttteretare it ctzauici mt match the qudtation of Mm}, the 5:1 tnictder.

5.43 it is further submitted that its tareign ptincitpais were based in t.tS.ft white the tereign gtzrincitsats at its mmpetitets in the instant tender were based in UK. The respective tmeign princépais were camgetitors ail ever the gitabe and tttetetmre there ccmté E'B(3'€ $39 a meeting of mind among their deaiets in Srsdia.

S44 PES further contended that it was cmiy its principai, Sttyker whc:

party and it Exact rm %_ «.':'..,)°«'j.

actgtg Stryket for cemze aft 1 /\ .r' ,:;-.'\f \ ,.J\J \- tr,-'V J: §>.,§;3\ﬁ_',.» ' -vi"

. . ..,.,-.v-

Stryker agreed fer the same. iiawiaxver, these items mnstituied uni'; aizmut 6% cf the entire z:.s;%nti'aci: req:.iiremen:_s. S-t€","kEi' Vsi{lii.iiC§ natiiraiiy be interested in seiiing its prociuizizs i.«viiether it happesneci through it ear tiimugh any other venciar. Stryké: has men giving such autixorisaiiczrzs as anci when asked far is uthe:r campemies as weii. it is imgzreper in aiiege that MSG izaci been abie to get the award of tesider beciause of autiharisatimn given by Strykei".

5.45 According in i>ES,. imam finding that certain sgsecificatians and cmmsiitions in the tender iecguireci maciification, it had aim written ti) itaniciering autiwriify seeking ameneiment which wag mt agreed. "Sims, it cannot be said that the tender canijitiims were made favmiraibie ':0 wii:

aii the parties.

5216 it is auizimitteé that D5 reiieii upan tixe mbservatiuns cf CVS xvithczut indepemieniiy verifying the same. PES aisci suiarriitteci that in pre-- quaiificatian criteria premtribed by arganizatian many suppiiers iaiieci ta cguaiify and thus only Eimited hiciéers muid finaiiy submit their bids.

SA? it has 3350 been submiizteci by PES that the Sports injury Centre proieci was a fast track pmiect and therefme the jabs reiating to MEQT am} MEMS were to be undertaken by the sirigie vendszir. 'iheire was nsiiiing wrong on this score. Cut :3? tiggwf .1-if:-'. J K3 '..A..;\n<> ;3re~¥aid meeting, 4 purchasad appiied. The bid -sf MP3 was ta<:h.i "

' ~ i3--itc3.diz::i5s . ariciw-.in's*zarii¥s-t:--.t§§e:r~&<3f§::-:3-rad-..

. .r.,:v.-\--.3 ~» ' " '*"--' ateae' ' §:e'~ei2esr r-r.i'ee§e.:*r'1 :e'ee-~.v4sy:stem . §rtte'grrert'ere-= ef» =tV§=,!s.. _ Stryker. Therefere, wherever Stryker required it to cempiete the jab werk, it ereceeee erre does the get: work. it cenrret he therefore eeici that in SR: garegect it was a éutwzentreettirrg party. rt has eise been ergeed that even where Stryker supgzﬁed' the equipmteets ciirectiy, the ﬁrrsteiietierr has been eierte by it.

33.4% Ge the question at typQgreph§ce§er'rers, PES has submitted that the typegrrephicai errers were ersty in price fermet and net in the price quetetirms. Gr: 12.1Gr.20{39, when ere-b§d meeting ended end up-on ﬁmiing that the erice scheduie was not being géven by the eutrseriﬂes in the fermet in which it wee to he submitted it was decided by are: er its eirecter, Mr. Ferrite; Chedehe te get it tweed from a nearby cyber cafe. The two ofticiete :31' MW) and MP3 ergo eccemeenied mm and shared the same. The typegraehiee! errere Cree: tn because eit the three bidders used the price termet eriginettrtgi tram the sirrgie source ie. cyber cafe' wherefrom the bidders get the typed price schedure in eiectrrrmir: fermet in a pen drive.

5.5% PES centerrded that it wee eertinerrrt that in 33% the three atatemerzts, parties in question consisterttty maintained that they had net made the price hid ceitectiveiy in rzenststtatien with each ether. Accerriing to PES, the euetetierrs were tiiied therein by the said btctciers et their ewe 'd'_,,,.w.~.~..,, "i1§j3wh$ch they ceuici have respective effices and there weer"

.$ 3 He"

. . r " e' reveeiree T their quetatmns to geageh :'g« :2"

Ix kw

-.« g 3'3 "r. eii the three parties

- desﬁssstaiie§y.:sm.é3;:a%e-é.*;t:::~win ..

was no cguestien :2? meeting of minds and concarted action as couici 3239 be seen from défference in price quotatiens in the respective tezmders.

$51 Accmding 12:3 FEE, the difference between the qzmtation :1»? Mia. M83 éncﬁ its awn msetaticn was csf mare than fumes tws cmre whim net Craig; disprawss but mtaiixg riﬂes out any pmssibiiity 6% meeting of mind and ccmcerted actimx. if §\/EDS quated certain garoducts at the iarger unexpacted percentage cf dismunt to grab the Cﬂntfatt than the 'inahiiitxg of PES to qz/.:s:ste for the same product either at the same er at the iesser rate cannot be ﬂamed.

5.52 Ascending to WES, méﬁusion canmt be inferred canchxied mereig:

because it had mt abjected to authm§sat,i:ms granteé to Mm) by Stryker. Neither the ex:.:i:.z5ivi.ty nor tha experience in reiatimn ta Stry%<er's items was an issue with the 'EEC. Sinca both M33 as weﬁ as PES had authorizations from Stryker and further MP5 a§sa couid quote the praducts of Stryker's without authorizatian due tn the C¥E3E'iﬁ€Za'C§Oi"t Essued in the tecémicai evgﬁuatimn ::c3mm%ttee meeting dated 3.3.13_.2{}G§3, there was nu oszszasicm for PES to obiect mare 35 when PES itseﬁ' was ram:

meeting the experience criteria with the ;::méuc*ts. of Stryker.

5.53 Acccrding to 955, as car1notsit%nf«§:':_ "

g'5$_¢g9"

gg ciecisien of tbs:

._,> .5: '\ 'q' E"

Tethnicaﬁ Evaiuaticm Ccsrmnittee, beingéﬁwéex "f %c2i:§\§~}e~§hE::h was taken \ ccmciusions of aiﬁeged coimsicm, car'te§ized behavieur ané §:>Ed~riggEng in form :3'? aéiegeé Vsubcontracténg reached by the ﬁﬁ was tataiiy erranecsus based an mere surmises and cm*:_iectures:

5.54 ?ES suizmitted that it was prepastemus to aiiege that it aiiegediy aiéawed its competitors MEX} to win the ﬁid and thereaftar has aiﬁegediy abtained guppéy contract in exchange.

5.55 Accarding :9 PES, in year 20%? when MED had gust started the busmess sf Qperatian Theatre , the mmgxany had purchased items from it pursuant m which items were suppiied and Envoimas were raﬁsad .% The transaction stood mmpﬁeted and squared up amen receiving the payments from MBAD. Therefme the saéﬁ invmice amaunt was met fusther reﬁectesi in the year 2038. The advance ammmt smwn having renewed fmm M31} in year 2016 was an accaunt of the purchase of Entegratian equigments manufaztured by Stryker fer the pmject of SAC.

5.56 Further, MP3 P%r0je~.::ts maamfaciured Me§i«:a§ Gas Pipeime accessarées and brass adapters and other smaéi cunwpanenis from wham varicms Medicai Gas Pipeiine mmpanies make purchases. According to 7" € » \< 3 %\.

\ , QM.

PES, M§3S Projects was one ndors fmm wham it ,1 w.' 5 'E2 C} » «Ether items as%::kad j}~',I.«~' rsua 3':$134w?1<i:€%§'és$®b§Ls::;:*Ei:§¥z :'.-arm 2stmre;sre€saz§tqa'£éQ.::::s;;:cf %:hg ;d,;<=:tf:§. , " wh5'en1'¥equ§reté .'*="§'3%1?é*%1?éé:-xiﬁsiza-Ancﬁm §*z:e.~::w;sf3«.:. Sn §t55%:'.a£:.z:ms.r2i:sL was in _ ...-..:...;; -_ . .

fact the wee: outstancmg amount in favaur of MFS Pmjgects against the purchases made bx; FEE 'cm the end of financiai year 3310 beginning fram year 208'?! 5.5? PES submitted that it was tetaiiy' absurd :9 suggest that aiﬁ the three campanies nameé in the infarmatian were re¥atec§ ta aach ether anti there was same kind of prém' Lsntierstanciirzg between the bidﬁers in submission cu? bids to SEQ.

5.38 PES hag further gubmitted that execution 0? the $35 by it at SKI was §imEted ta andfm in r£=.!Vai:ic»:": ta <:m¥3z S%:ryker'5 gsmducts. Since it was §{:«§e deaier tr? Stryker, it was asked to undertake the job far and on hehaif :3? Stryker at SK: fer the reasan that it was maintaining an the infrastructure support and '£9925 far instaﬁation and maintenamze 0%' L Str~g§<es"s equEpme:':ts. Since Stryizes" had autéwrized MDE3 to quate its graciuct for SF; tender, it {PES} haé to prcvﬁcie detivery and sumaort far Snstaiﬁatian and maintenance far and cm behaﬁf 0'? Stryker and net as a s:.:b--

cuntracting party.

infcrrmatien in the case had ai¥$,é=ig§_;r3 Q.'-

E czf the MST anti MQMS <:os*'v§;".'7(é<ﬁ-.':z'> 11$"! i ;:;>:'.

i<i-'=ﬁe-3-§%tVa§-sA.A 127.-kn ﬁne» L-a:-@:n'eraT:'%;--*=:=t%3e::%&e: --we§eV:-:siTn'§$a m;::.~:.<:a:;::':x.-2.s':§?: E'-ts: were .

wrcxnghs rejected wmch it chaiienged befme the §-icmfbie High Cuurt and aucceeded in estabiishing the wmng, wmch itseif s%;;:u<.=:aE<s vomme abmut its stmng beiief in bmafide iegaé gsmcess ta setiie its gemizine grievancew 5.6% According ta PES, {)6 faﬁed ta aptgareciate the very nature cf this inaﬁustw bath at the nati0na§ and at the internationai: ievei es'pe{;§a§¥y the fact' that there were: iﬁmiteﬁ gﬁayers manufaezturing arm deaﬁng with these equipments wmd (wet. The hespitaia amﬁ athar tendering authorities requiring such equipment aiways endeavoured that eniy s.erim.:s, extremehz capabie and experienced piayers shauid came forwaré far the jﬂﬁ. 3:': order to ensure the same a very weii deﬁned, spe<:§'fi:, dear and twtaiiy unambigucus prequaiificatian criteriafstanciairds and specificaﬁans are $336 dawn so that nervserieus and inexperienced pmyers were eﬁiminated fmm gcxarticipating in the tender.

5.51 PES aim submitteﬁ that {)6 totaihg fnrgat the fact that the gmvate %msp§ta§s have fuﬁi freedam ta award mntract without gsing through a tender gzmcess and abviausiy wouid sekstzt {mm amangst variaus vendors cannat be biamed and gzsenaiized far it.

5.62 Accwrding ta PES, there existed Sufficient guicieiénes framed by Ministzv of Finance for determénﬁng the reasanabieness 0? the mice and} er cost wéth regard is the pracuremeni: sf gcmds and services anci ai§ tha Mirﬁstries were Wei! aware of the same. The tendering authcsrities dc:

conséder this; aspect during evaﬁuation of the mmmercia§ héd sf the parties whiie ccmsideriéng the price cgumteé by the parties.

5.63 Accmding is £355, merew because two parties submitted their seaied bids at 11.28 AM an the Bast date of bid submission when the bidé were being accepted {my tiii 1;?.,3ﬁ PM and me party submitted it at 11.38 AM in the case of another tender cf 1Pf\¥A hosgitaﬁ, it canncn: he inferred that thare wés mi§u:sic:m ammg them. No case was made out of a miiusive tendering and/or any agreement arai, impiied GE' written anti} er cf higher gxrice and/ car 0'? ﬂowering an' quaﬁty as' gcmds £3!' s=e3rv§ce~s., As a resuﬁt, no v¥«:3§at§an :33' any ;:):r<wi$§c:::ns 0'? the Competitinn Act can be attributed to it.

Remy my Medicaé Pméuct Servicm \ ' has aisa cismied its bid §'ig'g§ng. MP5 has a.§1.y*...:femste%d A{ii*'§:'sr*4'«w5.,§:§;.«°E_§V:é§?§:£3f;S§3§T§%3i..$§s§§s§%§£8_:¥§s»v--:5??-§§--5.=:£3:--'${§3iii;-3ia?§!?§'~_~'§€3?§:§§%E~3.§§§;33¢.at-..+. .. .. .. .

C£3U§{3 30?:

gmursds anti was ousted from the tencier pmcegs. Had it been a case sf 3 startei with PES Gr Mm), were wauid have been rm mccasien far 5:: ta net T quaiify men the te<:hn§ca§ bid.

5.65 {V3535 Submitteoi that E': had agitateé before SEC against the variczus speciﬁcatian and c.<3m:¥Eticms prescribed in the tender. Thus, it cannot be said that the tender specificatians were made ta wit it and other aiiseged cartei parties. The repart of CVC reiied by the S6 haci ma hash. Awarding ta MP3, thrcughmzt his repcrt the B8 addressed abaut Ewe-ivement mf PE3 and M39 whereag it was dragged 321:0 aﬁegaticans far namesake. This shows tatai mn~%app¥icat§::=n 0'? mind in the inveatigatim cf aiiegatianaf pre;3as'atEcm of report.

5.66 it has been submitteé by MPS that the ﬁndings reiating to authmizaticm by Stryker ta svma gr PES dc mt pertain ta it. it cuuid oniy obtain %§e'st':er of autharity frcsm Eiari Siorz. Had it been the member :3'?

cartei then it alga wauid have pmcureci ﬁetter cf authorizatiun fmm Stry¥<e%r.

5.6? with respect t0 the findings of simiiar typograghicai m§sta§<es, it has been cm'ri:end'ed by MPS that the simiiarity is 0213;: ﬁn the fermat of bid which ::am1<.:»t¥eadt<3 any inference of meeting cf mirzdfcancerteé action. Sémiviarity in the ty;30ga'ap§:ica§ mistakes in fmmat wag a remit of .....-»z\-.

wF""»~ '"'\\ cbtaining the copias fmm the sing§e cy}a.,_§§§ %';E~3\§armat had been get .3 ﬂ-<93' '.\ . fe'*\ws§3_h ather tendering f .3-:1 K typed by one of its empﬁcxyeezs fromfihgfay 1""§:;'é';:'*$t§eé-="e's*=~h'e§* a1eee=?e'e=en énfe rmeci he 'Eh 'iihs'é:eei~%et§en:;««e-?¥he 2.Cse:pe:e;§ie::=:»s:{...«; ., Parties or any other max,/ers in the ﬁehti were heahhsg cempetéters arse net enemhes. Since eniy the fermat was same and hot the Subsequent entries in the fermei: or other iefermaticm in the farms: speeificaihj xeithin the khewietﬁge ef each party, it cannot he eeid that the hashes were in agreement with each other.

5.68 MP3 ﬁehied having deahng with 955 as eiieged. it is Stated that MP5 Preiects had céeahngs with PES and such deeiinge were not restricted in PES but ether pzéayers in the fieid of MVGMS. MP5 was into manufacturing :2? i\»"iee¥Eea¥ Gas gaipeihwe accesseries and had entered Ema transarttiens reﬁaﬁng ta varieus gas pipeline instehatiens. MD!) was one :3'? ZS entities with which h heﬁ husihess trehsaetiehs. Mereiy eh thés hasia. inferring certeiisatiem wouid be impmper.

5.59 As per MP5, {)6 En his report faihieci to take hate ef the 'fact that an anaﬁysis 0? East 5 year eroiects umiertaken by the 3 eemgaehies reveaieci that M33 had done 23 prejects with value :3'? "M4? Lakh, PES had dune 32 pm}ects with a veiue en' 329$ Lekh, whereas the §\!3?S had ciehe 222 erejects whh e vahse 01' 3.2% Lahhg The differente in the number of erejects and the veiue has escaped the attention 0% EEG.

830 3': has been denied by MPS that the magerétwg of pmects have been cernered by Mimi}, P55 and MP5. D§§§;?§§¥i§T§fT3£e\ eek infermahtiee hem ah _,v":'\\ \ players in the fiehrl of mm' sans the derave such cehchseieeh. it was xwehg te aSSU::1E{§3§C§§'§ Ptsen er fermaheh :21'. a * N. '.\+ 4 .- 3".

ye.

x. N. ..;.:ce_;e e-use - t?.eeae.ttte§etee»= ge-we-reteen t. e §'t'.}§€§£Z'iZ$, . Ste ee.;:ti:te:»_ i;1ee:ees_Etet; Eeetiee at-:e::.; 3., not in 2-3 eesitien to step other eieyers frem eertécteetiatg in tender.

E3331 it has been further submitted by MPS that no twe projects seem be cempered fer the eereeses ef pricet comparison. There existed 5e many tasters whﬁch eséistinguéehect the price eemptenent :3'? me product in sane em§e<:t from enettser. tt wouid be enreeseneeie to stngée out MQB, PS5 and MP5 fer quoting different prices fer' same preeuct in different projects, witheut examining the intticacies ex" teneer arse its requirement. Futtftet, the price variance was 3 cemmen feature at different temiers and Wes pecutiar ta etﬁ parties in the fieid et MST 3: MGMS instalietéen. {)6 has faiied to consider the project ef e¥§ ether eiayers and their price quotations befeere deducing any erroneeus cenetusiens egeinet it, 5332 Accereing te ME'-'S, there were verieus reasons for price variance in government and private setter heseiteis. For gevemment taespitets the suppﬁes were generaity shipeed by Air eue te strict c:e3mpietien eatee, while in private hoseitais they are generate: shipped, thus cutting the cost price. The private heepitais eise cemeremise on the cempietien date and there is no tevy of peeaities entike the government tenders. in private hestpiteis, 23% ':0 59% et tote! test $5 reieesedi in advance eiengwéth the order, but in gevemment heseitets eertiet payment is reieesed after 2-3 menths. Heweve;,wt;§'§"fe"£§ttilr£ie\r 3135 te depeeit the feii .~'-

4?.

3 r '§5:";g:;;'€1\:Weity was again a mejcsr a.-:

emeunt in ecivence ta ferteign SL1 k.

.9 ejer F

7. . .- Ex" M 'V: "&' § factor in euotmg different precestﬂ § .. . . . \:_»:_'{ .Q>.f ~ ' an-:«:$ee=»...s.e§v§£§e.rerrr.:e:--2rim.» rsrirrreer.:;--e2erw;e.ee.r.,rAmie-ere ;z:§'1§.{3.'e"='='f3§3§~e'-1~3§S .._:;§ﬁ§i ~ hosprreés eiso iies in terms cf AME anti tree for contracts. The periee ef AMC and CMC E5 much higher Err government hespiters then private hespiteis. The bidder hes ta submit bank guarantee, eerformenee guarantee and gecerity deposit Err case er' gevernmerrt hes;3rE:a§s erre net Er: prrvate hespireis. Besides there were he mzmereus faeters effecting price. Hence rue cemparisen cmrid be drewr: eut edxrerseiy withorst fuii exameieatien into the requirements 0'? tender.

534 MP5 has submitted that the findings of CA6 or the firrriirzg regarding price escaierien in the inxrestigaﬁorz repert er {)6 as such does not ineirzt MP3 at eii anti hence required no exrzienerierr. it was egeinsst the rrrerrece er carteiizatienfbidr rigging/ce¥§usive fcxrrzidirrgr Hewever, it in new way was reiated to it. Three different entities were competing in open market against each ether. The a§ieget§r:srrs or certeéizetéon/hrci rigging have been raised by the r,rnsr:r:cerssr'r.r§ rsiayers in the ﬁeild of MST 8: MGMS. The §evei§ir:g of eiiegatéerrs by varieus NGQS to espouse beseiessr and maiicieus cemeiaints is ear: of unheeirthy and arrrﬁ-cerrrpetirive tactics er various busiraesa riveisr 525 According in M93, 88 even rareﬁed re appreciate that amerrget mere than 9 prayers in the "field er M3"? 8: MGMS énetaiiatierz, three pieyers ceuid not have reiated bids amongst themsehres or ever: arzree in cancer:

Na-

4-"'j'" 1 to Guest: ether piayers, who were °ﬁ'§r:\En terme er' teehrzeiegy .-3;{\ x \ ..

pie' E2-rs. likéi-3 Keri Star: , a and experience. More so, whee @m er I<\.I 'K .' tenoors.

536 MP3 further contended that the 36 had faéﬁeo to aognreciate 35 to how it could he invoivod in a cartei when it was rejected at the-siege of tochnitai bid itgeirf. The appreciation and apoiicaéaiiity of factors of 19(3) by B8 was 3350 erroneous since no barrier had been created for the new entrants by the bidoing parties. The fact that numarous piayers existed in the fieid of MG"? 8: MEMS was §t5e£f indicative of faiﬁacioos aporeciation of circumstances by the E36.

5.52'? Further observations of BG regarding suomissiorss of tender in short mervaﬁ of time, it Es contendeoi by MPS that in 3!! cases tenders are cieposited during the iast few minutes and it couﬁd be more a co» §ﬁCi(§E3i"i(3E3'. BS unoeszessarily ciragged the name of M95 evooryowhore, despite there being not a singie instance or Emroivement to it in préce escaiation. As regaros proximity of submésséon of bid between MP5 and MED in the 'canoes' of MPA {case no. 48 of 231.8) it £3 contended that whiie {)5 had taken a note of same, the proximity of timings in submission of tenders by the Eagie Medicai and Karﬁ Storz, which was roereiy a difference of E3 minutas had been ignored, 538 MP3 denied that report of {LAG inoicteci it at a§¥. Further the report of WC was aiso an :.,mre¥éab£e- piece of evidencé. Benson, another firm had aiso been aiiegediy invoived as per CVC. However, E36 _?ori<~=§o;o unknown reasons. 35 » -iiiiosz-m.§::a n:*§2=;<.of::.&:<w.o~r§o . oouid aa§:so;::=> E.<so=v:e; :..o.§.roc:tEy .. g:2a.s:t¥.::i:;::.o$<4so:-;=;_i:1, }-:;:,§*:: » .» .e.i;'e£%:f&*eti.er1a. Eb 53:".§~'.é:g.iQ*.,"3{3E.*'.'§.'-'e»s§'§w3§§73i§:§. ..w;ere; i'2_e._é..n g....e.e.=sa;*ee,e,.;.e.;., .. .. ..e.

te the Qppoesite Parties named in "the Enfermatien.

S529 MP5 has eﬁse ceswteneeé that it cﬁici net qeeéify to participate in the bid of SEC {which is subject matter 0'? the eresem: x::ase§ and aim feiﬁed te qeaiify in case ef JNPA {which is subject matter En Case Ne. ea :3? 2{}3'.{)). ' As per EVEPS, it was trying to seek concessions in the terms ef the tender 'ta compete with the others ane fer the saéd purpose it had submitted a reeresentatien dated Q8.18.28G§, which was net coesésziereﬂ by the eutémrities and its bid was reiected.

5.8{) According te MP5, when En terms ef tender cenﬂitions, it was disquaiified to eubmit the bid for SEC emgect, it ceuid not have been part of any ceiiusive agreement er barf rigging fer the purpese ef eermnitting fraud as has been reperted by the EEG.

Reeiy by Ministry ef Heeﬁh 81: Femiiy Weﬁfere 5.31 Ministry of Heeﬁth & Famiiy Weﬁfare (QP'~4} in Eta reek! dated 13.12.2011 has submitted that it was not a necessary party in present matter as no reiief was cieimezi against it. Therefere, it may he ::§e¥eted from array ex' parties easier Rake 26 of the {JCS Reguﬁetéens, RG59. The charges in the case were against the tendeermg firme fer b§c§«rigging er b§d~ mtatien. The tender as issued by thgwgf had not caused any adverse N. 'N effect Cm competitien in meme':/5 I . 2.55.82 it 33>'s$?<£'§'%3?i:§§31%.<?§...,'£33-3$3':33%:,3-f§$is¥é*§:rfiﬁéﬁﬁﬁ=ii=§ﬂ§§=..'=§£1»3?§3%?:E~3§5 :f.a:'...c§esign,. SL5 paw;-. : ,;-5 instaﬁatksn, testﬁng, commissioning and rnaintenance 9%' ¥WZ13"t" anci EVESMS was undertaken by i-=§SC{3(E} Ltd. a Gmrt. of mafia undertaking w§':§ch was the ?*:"::sject imgaiementation Agency in the matter. There was no procedurai iapse on Eta; part which causeci iass ta gmxernmeét e>:c--%'aequer. The entire: wmrk of drawing technicai s;3ecif§ca%:§c«ns, 'carrying out tecimicai anﬁ ﬁnancial e:vam%atiar1 of bids wag carried out by expert ::om%m§*.:tees mnsisting of experts and seams' afficers.

5.83 Sn the Egsue af awarding cczmbiﬁed werk for MST E; MGMS, it has been submitted 'that the same was; disrcussed and E': was observed that there were variaus instances of awarciing c~m':':b'ins:c¥ wark cf MST anti MGMS in many cthsr hogpims. The reasons far a cczmbined tender in the instant case were a) Time bound nature of wark and ii) ensuring smooth execution 01' work Er: a coordinated manner by. singie agency and for establishing State an' Art DTS and Gas Pipeiine system an' inteimatianai stanciards.

5.84 According ta ma Ministw, SK: set up for Ccsmmcmweaith games in 281% had 3 GT5 imzﬁuding one integrated QT, pre~ope:'at§ve mom and medicai gas pipaﬁine in the GT5, pre»--ope:'at§ve mam, pos2':--eperative mom and in the entﬁre ézosgital. "me mmpiete GT5 and Gas pmeiine sysmm e:c3mpe'ised af about 86% imported eqj§g_w_:g§n:e\r3:t§ which were to 'be sourced ..-*"

from dﬁfferent; fareign ma+nufac§f§%:§? 'T3' integraied at the site Q' 'S .3: 5 aimng wéth other inc§§ge:x0us£\:§::&sf9furc$i;_

-

'i"qui}$maa3ts and items. The .-. - I;

» _,-.' ......e.xec::.s'i:§c.:n. cf. we;:iks:»was.;v.tm .. izze. ca ;:::;ie_«:1i .;.mm_: {:2 ma €;:_s.1;c3s:é.f§,%f?%.3.i:sF3:.:i ;:.3.a.§med .-; » ' L ~ « H .

arm in a time hmmd manner. 3t was a stamiard practice to cambine certain packages far smmth Emgoéementatﬁon am} executim «:2? work in a time buund manner. Hewever, whiie deciding the cfxnapasitimn 0? such packages, due diiigence was carried am", by fcxmm 62'' experts so that me mmpéete pm}e<:t was execzsted, ciividedi mm aéequate ggackages ta ensure timeiy execution.

5.85 The M§r:is'i:*ry aiso submitted that in majmrity <33' teniiers far :;3t§*2s<.=::* hospitais, for the suppiy 9*? GT5 and MGMS hy \:aric:us% Qrganizatiens, cmﬁy 2»3 itsiciders had participated am} in same cases miy a smgie bidder had participated. The birﬁders wim participatad in n":a§m'§ty of tenders Wm":

Eimited gjarticipaticm inciude PES lnstaiiatimn Pvt. L3;d., New Dem; MOB Medicai System (Sndia) Pvt. Ltd', New Seﬁhﬁ; Medical Praducts Services, New Beihi, Eenscm Niediai Equipment Company Pvt. Ltd, New Deihi and MG! mdia Pvt. Ltd, Gurgatm.

5.86 it £5 further submitted that in ihe instant. case 3 bidders particﬁpateci and the ccmtract was awaréeci ts; the knwest bidder. As such tha garticigaation m' bidderg in the case of SC was at par with the participatimn in the tenders sf athar m*gar2Esati0ns. Keapirzg in xsiew iimited number sf suppiiers En market and Eimited response in the bid, ét W»..,:<;.eeeete.%§.§..r1g.the *;eﬁe.ee5$ zevee. te:ez~sge.,_;mesg._.:,:g.ee:re:,.. :§'3{j:s?,_. --.;;e;3gtexre:3 ..

techniceﬁ and fieenciei cepahiiity to perform the ceetraczt.

5.8? it is further contended that ezaumptiora that ﬂeeting seeerete A tendere fer Mm' and MGMS weuﬁci have resuited in more competitive bids was 3 hyeetheticei cenciusien and cannot be treeteci ea reference egeﬁnet the decisien ef preeeeding with a tender fer combined work erder.

533 Further, accercfing to the Ministry, the exercése ef eiieceetéen :3? budget fer the werk, period :1? warranty, eperetﬁen and maintenance was Lmcierteken by a team :3? experts. The bid rates quoted by L»: bidder were aiso eveiueted by an integrated purchase committee. The bid 0? MP5 aithough techniceiiy net foene suiteci, was aise opened fer price cemperisen. The bid :32' MP5 was fauna? to be the highest. A Bike 4:0 i§¥<e cemparisen was made severing items tea the extent of Rs. 10.32 were {eat of tetai quizzed price of Rs.14.69 Crete) and it was feeued that the quote rates were 18.72% kzwer fer these iiems. As regardzz 8 items en which rates {mated by MED was {mind to be the higher in reseect of other centracts. A saunter effer wag made in Maﬁa The firm ecceeted the eeunter effer.

5.89 The ¥\f§§n':s'2:ry pieeded that the firm's request fer sepeiy ef equipments of 'Ewe foreign principais on rupee payment CEP eestieetien basis inciusive of agaeéicebie custe:':},..«g§§et§ there wee no edtiitienei cost bL§:*c:i§jh 4'; ..\ . \_ _ S e

-P' ,, , at §s:.s.~.~se;.;"t iZ2§£t.E?,§§§iTt§;. .inspectit;=-st, ./§;§.:t=Q§}EE73§€T"tg_;...;{5'3.§S7§I{} mt. c.§eara.:t.::.za; amttj .. t.

chargas, gmsetnment congidered the request at MEBQ state it was net beneftciai in 'terms 0? ever:-ﬁt cost but aim reiieveci the gavetnment at the various :'e3g.:sc~nsEi:sE§itEes §§£<e LC npening, ctsstam citaarance, §'tane¥§§ng etc. tn this caaa, Mm} airtifted the equipments a§t§'!Otig§'3 it had the tmtim in imgmrt mam by sea mute, thereby incurring extra expentiitme.

53C) The Minigtry wE't§k-3 ﬁenying that there was any pt'0z:edt.:ra§ tapse on count of Tectmica§ and Firzanctat Evatuattcm ccmtended that the tatest technaiagy at MST and MGMS at SEC has been graiseci net cmiy by the medicai prafessitzn but atso by one and aft whomever had seen it. it is submttted that there was no improper evaﬁuatinn at b§C§S anti at fair ccsmpetitirgm was ensured in the case.

Submtgimts of Sntormattt 5.91 Dr: 3.3.12.2ﬁ1:;§., the infarmant 353:3 ﬂied its tesp::mse ta the {K3 i'&[30t'$ in which it expressed its agre <'I.'$§~, L':

Qectttan at Camméssiem SQ materiais can regard and regiies (sf the parties aubrrzétted in commie Q?

praceeciing, issues far ﬁeterminatian

6.1 The Carmmissian an the basis :33' the ﬁndings of M3 and records «sf Eswestigatian mates that the foiicawéng issuea arise for determénaticm in the C358.

issue 3: Whetﬁar the ﬂgpasite Partées have mntravanaﬁ the gravésims :3? sectian 3{3§€d) read with sectian Sii) ms' Enduiging Era the grasesg 9'? bwmrﬁgging Sn the mattar av? supgﬁy am Enstaﬁiatian 9? MOT and MGMS at ﬁpcris iniury Centre, Siafdariung 3-mspitai, New Semi ?

ﬁssue 2: Whether éeaéershig agreement hetweers Strykar ﬁnééa Wt.

Limited and ?ES was viaiative ef 'aha pmvﬁsians ca? sectéma 3%} reaﬁ w§t§3 sectéan 3(1) sf the Act?

Qeterminatﬁan Saws 1: Whether ma ﬁpmsite Parties have mntraveneé the gemvisimns 0% section 3{3}{d) ram with geatian 3{§,} by §néu§ging in the pmcess cf béé-rigging in ma maﬁa? as? fS§.§§I§§§'§' anﬁ instaiﬁatims cf M0? arm? MGMS at warts éngury Cantre, Safﬁariung §~Ea::e$p§taE, New mm: 2' 6.3'; ;-::s;)n§§iracies are hatched in §§e;r§§§@;:"' x' -'ii ."" ' <'~.,-)_<''&\ \ ,5.

<3'? ::::ms;3AEras:y is Left behind E33/3'?

rmasiiy no direct evit3as75m{:e an {.3.

rigging are two areas ca'? Competitien Law 'where Same piayers in tha market are imroived En a kind :32' consgairacy in either defraud ﬁne exchequsr 5:" ts map up urzstonsciczmabie prafits. The £<3mmE:;si:0n has, the-zrefisre, ta éook far the cireztumstamtiai evidence in {Arder ta ﬁmi cut if there was 3 cztmcerted actixzm am a csnsgziracy (:3? bid rigging/carteiization.

6.3 in order is determine the afaresaid issue, the Commigsian deems it necegsary to first bring out and digcuss the sequence cf the emire tender process in arder to understand zmances and than anawse the conéuct and behavicrur of varicxus bidderg in the case in that backdrop.

5.4 St is reveaﬁed fmm the recorzﬁs that in megmth of éune 2:308, the Eviinigtry af Heaith & Famiiy Weifare had taken a decision is estabiish Sparta injfury Centre (SEC) at Safdarjung Hc:s;::ita§,, New Eeéhi for Commonweaith Games 2816 in be mid in Cseihi. Hnspitai Services iionsukancy Corparation {E-SSCC), a Pubﬁc: Sectar Unit was appczinted an nmmination basis as the impiementing agency fer the groject' 6.5 A decision was taken in the Prqiect M;:m%tQs'%ng Camméttee meeting heid on 26.G8.2U{}§ under the Chairmanshig «sf Saint Secretary, Ministry 0? Heaith and Famiiy Weifare and in charge :3? me SH: pmject to constitute a Commhztee under the gh ' .9' ¥}_as:'1shE;:: of Addi. B6 & Medicai Supenntendent, Safdaqung Q K}.

e>¢a(\:§%:?§ae and make suﬁtabie _. Vt re<;ommend%at§:3n5 regarding saga ti:

ii:

':1.

5:

'X 5,x,2\' ,p.

«:.».=..the.:'e3$a::e;..v:4.ti;a:a._-§-&:ea».s:isaiemred. fram the .c§rcu-m<s%am$s..T --= V ifeﬁrif :Vseete.m. .3 ed fi ea ié.'=:e...e:..t%=z:e..r-.:£:eee£e rs... '$1§3.8:C§'§§Eé¥3§'}§3r::e$.:-=:~ ~ . ~ thereef.

6.6 The cernrrzittee so constituted after geing trzretzgh verieue tenders reﬁeting to werk er Meduier QT and Gas eieeiine ever the east few years at verieus Government iestiéutiens in irariia viz. e§§MS{QenteE), R?v'3§.{'freeme cerrrre), KEM Mumbei, Gee Medicei Ceéieges LN}? mrthepeedirzs} and institute of Laser arse Biiiary institute, Deihi recarnrnended that, the tender fer been Mm" and MGMS sheuie be cemrbmed and ewereee re a singie bidder having experience er heath these seecieiizee marks.

5.? it was decided that Tenderer quoténg the bid sheuie have experience of bath meeuﬁer eeeretien theatre and rrsedicai gas pipeﬁne system and must have cerrrpieted at ieest one project cf bath meduﬁar eeeretﬁen theatres and mediczﬁ gee pipe ﬁne system in any arse of the centre:

government/state gevernment,'EPWQf?WE) Gevernment hesgsitei ﬁe mdia. Two seeerate orriers eieng with cemeﬂetien certificate fer Mediceﬁ Gas Pipeiine and Meduier Qeeretien Theatre frem game geverramernt institute re a cemmon eideer were eéeo eecided in ee eenséderee.

13.8 The Cemmirtee further rerzemmerreied that e eudgetery previsier: er appreximateiy 10 {ten} rsrere sheuie be made ear: of the tetei Euriget er R5. ?O.?2 crere saraetﬁened for terai erejeci: of Sports were Centre em} ..-"""'".'.' shertfeii if any could be met by reh}5g§::'i"""

¢-"_..:'& "H Equipment' Head of Seorts §rr§ur§x'iCcg33tr~ ~-- .;;.-T.e§.i>e.i£:e--.i.::..iitaeeétigatiee . -

Chairmanship of Specéei B6,, Medicai Sewiees, ta tineiize the tectmicai speciticeticm ef Metiuier Q"? & Gas Pipeline in the 33!: was heid en 1ét.ﬂi9.2BG§ in which the draft tenders speciﬁcations and the isiii ef quantity 0*? watts ef Medicei Get 8; ivimziuies" CT were discussed and ftnaiiiseci.

518 The Netice inviting Tender was issued on %1.1ﬂ.2GG9. Lest date :3'? submission of bids was fixed for 26.10.2039 upte 1390 Rte. A preeid meeting was heist an ;i.2.1G.2iZ}G'3 which was attended by the reereseetetives at tweive firms. The firms which reeresentee in the we bid meeting were M/s. BQC indie i.td., M/3. Uttam Air Fweducts, M/5. Fiieri Haspiiteitecheik M5,, Mfg. Bensen Medicai Equipmente {S} Pvt. i.td., M,/s. Aicen Metiitech (3) Put. §_td.,, is/E/3. M63 indie Pvt. i_td., M/s. tviedieai ¥3rec£uc.ts Services, iv!/sﬁi-IS iestaiietiees, ivi/st Stryker indie, NE/s. MED Mediszai Systems (indie) Fete £..td., Mfg. Ker? Sterz, it/ifs' esp i-iespiteeit inciie Pvt. Ltd. Same of these firme raised certain issues regarding tiesigrz at tender specificetiens especieiiy the issue of ﬂeeting cembined tencieir tear both the wart»: of MST em MGMS. Many firms were :3'? the View that it the combéneti hide were invited fer bath the work, they might est ti-e ehie tee participate in the tender.

6.11 A1? the pmspective bidders who attended the prebici meeting were requested to submit their queries endfgigsewetions Eetest by 3.0% PM on .

-;.\_',-

\ x V:

»' ti" .

13.1e.2eee. the eateries raised by ;i;e,§e'~ 3 K' » :..«.«.iss.u:.e.5_ ;Z'.I4£:3_;§'i1'Er.'3--.€'.rfs_§.r}g,:,i1.Q,~_;1§§1§:._.rieihnice},;.q.ue.:f.i_§3..aﬁd eueiifyinge.crrie:e.:r§e. .w_erf_e.._.._._.

rdiscusseei in the meetérzg ef the Tecrmieei Cerrrmittee herd en 19.1Gr.2{3Q9.

6.12 The amendments to the tender cenditéens were subseqruerrtﬂy issuee en 22.10.2£3C99 by HSCC (S). ﬁt was ciecjded net 're issue twee separate terseers fer MST and MSMS. Last date fer a subrnissien er bids wag eﬁse exrerzderi upre 2§.3G.2Q(}§ er. 3.5.03?-ﬁrs, The Technicai raids were eperzee on 29.33.2689 by the Cemmirtee. A meeiing er Teehniszeﬁ Evematien Cemmirtee was %re¥d en 13.11.2{}0§ feiiewed by e meetﬁng ef Cerrrmereiei Eveiuarien Committee era i¥.6.11.2{3Q§. aids er the feiiewirzg three bieders were fmmd to he received teefere the date and tﬁme er subrrriesicm of tender:

3. M33 Medieai Sygtems (indie) Pvt, Ltd.

ii. PES lrrsteiietiens Pvt. Ltd.

iii. Medﬁcei Products Services, New Beth?

6.3.3 A seaﬁeei erweﬁope from Keri Sterz Emiescepv indie (P) mi. was eise received. Hewever, the ﬁrme had net sebrrzitted any techniceé er ﬁnerrcrei bid and had simeiy returned the bid cioeumentsr 5.14 The Teehnirzei Eveéuetien Cerrarrrittee reeemmerrded that eniy ewe of the firms, viz. PES Errsiteiiatiens Pvt. i.td., New Semi and M83 Mecticer Systems {£3 Pvt, Lr.d., New Cieéhi met the tecrméeai and quaﬁfyirsg criteria end their bids shame be eveieated further fer cemmerciai terms and cereﬁétierzs. Therefore, the .-->:~ HSCC {2} en 18.11.2€)Q§ te o§e§"rh' 'ﬁsxiof the firms, MED Medical 3 .S§.¢sts3ms,.{.3,::a§.iiaI} P-%.:t-,:T..%.L:d..:&%.M §-3E3An3ta.E§a.t§::«n=<:_§?\zi'...» Ltd, whass: ;§)§.§§S.-hi-€E:§T§5... V7 ._ .. ..

technﬂ e:omme;r::':ai§y resgmnsive.

6.15 The price izsicﬁs of Techno Ccmmerciaw Resyonaive Bidders were stzpemezd an 2{}.:'L}..2{30§. A comparative statement sf price quoted by bath the bidders was tabuiated by the Cemmittee as Lmcier;

1 Sr. Na. Descriptien T Mm: Medics: Systems PE; §nsta£ia~:ion5 Wt. Ltd. {Emiia} Pvt. kid.

Equivaieht mm % Equivaient am;

Tam! far Meduﬁar ERR f3§_.8?9,.2£.$8.8(§* ENR 82,232,?3¢.£'§€3 Prefabricated QT Tctai for We 8: Past SEER 3.S,8=$§,§93.'.E4 SNR 1'2~',S2$,1B~E.€3G Qperaﬁve Rsaoms Tsiai far Medics! MR 53,3?1,S31,9£ ENR 65,1*E+3,14§.§8 é Gas Wpeiine System with v;1Tri::usT;sTervi:.es T T TGTAE. ENR $39,{3§?','3'?3,§8 ' 595% 1€i§,{}2?,€35¢3.53 {ma §4,24s,2s3.na {ma s§,?3s,a7a.:m +$53$".'§E§.§§} +$S?§,'S€P[3.{}€§ ' +$£i§)§,S?'§.{3} +1,24S,§43€i.£}G} Custams Sui»; @ 9.27% :1? (BF ENE ?,35?S,?32.?5 NR 9,?50,252.'?3 Pr§c:e* :3. Grand Yntai T ENR i4S_.§53»,506.3"3 ENE 3.'M,?$IF,31?.41 Bf ezwzc far 5 yam: Ni! " T was Sr. Nu, Bescrigsiioﬁ T T M0323 fvieﬂiaai Systems PE$ §nstaii2sti::msa Put. ﬁfcé. (India) Wt, Ltd.

Equivaient iﬁﬁl Equivaﬁent ma Wt Year {Year 6) MR 8,5D~ﬁ,{30£}.{}f3 §N§§ 16,592,.'?D§i.4'? 2"" 'fear {Year ':3 ma 9,sae,<ma~.a:) mm 1§,se3,2::ms 3"' Year {Year 3; ma 12,5eo,oeo.:m ma 2a,?54,a5a.'m ,,..--*'T-' "*~,«.\ 4"' 'fear {Year 9; gag. . -- ma :EB,£k5»$,601.£3ﬂ ,9, # 5"' Year {Year 193 Tutaﬁ fur CMC .Ta_x.;.€§~?\TiG»39*é.:.

an CMC WR 5,33%-,S¢3£).{)£3 inckgded ahave mane: ma: - CMC ma 5:=,s34,suc:.sm ma 122,3.2s,n2%?.zs C. {3§erat§:m Charges k:3&M of madame? my 19 Yeats} T ma?,s:m,o<3a.uoT ma ;a,»ma,:ma.aa mm as? M£§§ViST{fdr :m'?e*ars3 _ §NR18,ﬂD§},£3{§£3.SB ma 3s,s:sns3.cas.:m. mm: aperatsen Charges :2\:a2s,szm,m3a.a«z3 T az~ea5o,»2on,::see::.aa Md Service "raa@ 111.3% an Gpesra'¢ tTiT:sn$ ma 2,s?,4aa.m:: wms19:,2aa.s3:3 Charge Grand Tatak - Gperatian charges ENR 28,4§?',4GD.ﬂ0 £t\é¥'€SS,591,2£3B.§€II Tami A3! inciusive iumpsum Price 1 NR 2¢$3,255.:${}§.?3 ¥NR3§2,£~98.S45.2? % Ranking T T T L-1 1-2 8.3.57 The bid sf Mm) Medicaé Sy:=;temsT{§nd§a"} Pvt. Ltci was fcund to be the mwesi: at Rs. 2t$3,2S5,r106 with 5 years warranty, 5 years CM': and Operation and Maintenance Charges far if) years.

6.17 A meeting :31' the 'Tes;:hni<:ai Specificatian Cczmmittee was heéd cm G3.12.2{'.3G§ En which it was ciariﬁeiﬁ that the idetaiieci estimata-3 were never prepare-ci fer the compiete work and the budget proviséen of Rs. :18 more was envisagegﬁ far the equipment hardware Wm': stan<:§ar«t§ terms :3'? {me year warranty am} the E§€.'i€3§'{E0i'}E3§ warranty of 4- years and sL1bsec;uent CMC cost 01' 5 years and operatim cast. Further, afier the pre~%3'ed meeting, certain additi"f§,I§:aT{§;"§'§i;é;' -5x 3'? TT equipment, ducting far air~conﬁ:ﬁ;_$nr Eike high end Entegtminn 'er, third gsarty vaﬁidation were cansidered~--Mxza:ry.- §mg:)<:;>rtant~.fc3r»..1:§as=::.~pre§e£:t~.». arm ui33C§L3{5i'3'C§. .'Fhe...~«.;;.V commktee expressed its View that the budget pmvision 3*? Rs. 3.3 strere cauid not be ccmsidered as the cveraiﬁ estimatgd mg': far the mmgaéete T project incﬁusive cf the 5 years warranty, 5 years subsequant QMC anci 1% years aperaiicsn cast.

6.3.8 The cammittee accerdingiy recommendeé that #5 segarate rates have been caﬁed far 5 years subsequent CMC anti 19 yeara aperatien and maintenance cost for the §'\:*'ied%<:a§ C333 %Pi;3e§Ene and GT, it wauirzé be fak if initiaiiy is years warranty for the complete system and 5 years opezratian cf the Medicai Gas Pipeiine System and GT was avaiiaiﬁe. The Committee accordingiy ::cmside:'ei$ the price qumed by the bidttiers aﬁang with 5 years warranty and 5 years agneraticm charges as under:--

5:. Eescriptien Mm) Medina? ﬁystems (Russia) F'€5€n§'£a§§atien5 §3\.*t.Ltd. No. Pvt. Ltd. T Estguixment ma Etguixzaﬁent ma Tetaﬁ far Mcdzxiar W3 59,8?'9,243S.3EJ SNR a2,232,;?3::~.as Prefabriaateﬁ 0"?

ms: far Pm 84 Fast mm 15,345,993.2:«x ma 12,s2s,1ss.ea Eigserative {mums Tami far Medicai Gas ENRS3,3?'1,531,§~¢§ ENR 55,158,1&£i.53 Pipeiine System with M xmriousservizzess T TTTT T T TT T ' TGTN. ENE 139,0§§?','??3,98 ' MR 15S,{}2?.£¥5€2~.ﬁﬁ {SNR 54-,24!';%,288.§}{§ RNR §§,?38,1%?€}.B§ +$S3Q,92§.B{£ +$5?9,5ﬂ(3.{3£} T T T T T T +$5(19,8?6.€}} +1,£13S,§£ﬁ.{3€§) Custama Duty {:3 9.Z?% :3? CH3 ENR I-",§365,'.-'E335 NR 9,?5£3,252.?3 Pr§ceé* ENE 1ﬁEc,963&§£§§\-?-3«,..,\_ ERR 1'i=$,?'8?,33.'.'~".=$1 A. tﬁrand 'feta! E 95'?

3. {EMS for 5 years: Nii "§'3'3&3'Bﬁ'0'n Eharges.

mm :3? Moduiar mmar 5 vears; :mm9ao,.m;e%.aa T T T M ?,2{39,{30{}m mm ca? MGMS {far 5 veaavsg we R9,0£}G,(§(3€}.€3{} ma m,aaa,em.un Tats! Dperatién chasges §NR12,§0ﬂ,£3{§Q.(3{3 mm 2S,2T(3{}.(}G€5.GE} Acid Service "£'ax@ 19.3% an T TT T TT 3 Tm 1,32s,ma.sm mm 2,s§5,saa.m1; Gszeratim Charges ems 'ma: ~4 aperazian charges mm 14,2:as,?aa.ae ma 2?,:.r9s,sam.ua % ms AEI mcsusive mmgsum Tam T1s1,192,2as.73 arm ; 2s2,5s2,,91?.41 =Ranking {:1 {:2 6.1% The quata szzf Mim Medic:-.1§ Systems {indie} Pvt. Ltd, was feund ta be the Eowest at Rs, '}.81,3.§2,2{)6.',3'3 fur the design, suppiy, Enstaiiation, testing, mmmissicming, handing ever af Mcsduiar Ggaeratimx Theatre 8:

Medicai Gases Manifcéd System and asscsciated works at Sgmrts injury Centre at Safdarjung Hospitm, New Beihi with S yams warranty and Qperaticrx anﬁ Maintenance Charges for 5 years' 6.2%} in order to decide various issues before placing ﬁrsaé orc§ea"s an M33, the fewest bidder, meetings of the integrated Purchase Camméttee {WC} were heid an O?.l2.2{}€}9, 15.12.2063 & 18.12;2G€39. in the meeting <.:sf the WC held on ?.3.2.2I3{_'39, it was mated that the comfort about ' .« §':ams.- sit was...a:.:cmrding§\;, ciecivazévadthat tha ;::,;¢§<:e. §I§-Ki sfVi'a.:'3e:i§ca.i.:.;§?r;}c3zgL;:ts::,.,..L.' .1 4 , Services may aisa be o;*.3en~ec£ so as to farm a better Eeiea ahwut the casts irwaéved. Accmréingéy, the prim béci sf Medicai Pmﬁuct Services was opened by aﬁcmmittee. Mfg. Medicaﬁ Pmduct Sarvices hast qumzed a grim of Rs. 35.82 Crare {a;3;:m:.:x) with 5 years warra%nty & 5 years CMC and 18 years aperatian charges. The price wéth 5 years warranty and 5 years mperation charges was found to he R59 21.1% Crate iapprczx}. The quuted price of MP5 was accordingiy found ta be the highest of the three avaﬁabie bkizsﬁers.

6.23: in the meeting sf WC heid on 18.12.2839 it was mated that in respect cf same :3? the items where the quated prices 01' {:1 were higher, a counter csffer be made is the firm far agreeéng is suppiy these items at icxwer prices. Accordingiy, a counter offer Water was sent tn MS?) on 17.12.2369 for accepﬁng iawer rates for 8 such items. The firm in repiy agreed to reduce the cweraii price by Rs. 8,?2,S6"?;'.

£3.22 The WC finaiiy remmmended to mate arder in the case an {:1 bidder, M139 Meczﬁrzai Systems iindia} Pvt. Ltd. at a 'iota? racﬁuced price of Rs. 16,G3,1§,64-0/~w'ith 3 years warranty and 5 years cast 0'? Vﬁperation as suggested by Technic:a§ S;:secificai:im': Cenmmittee.

»-' 8.23 §=in+a3iy notiﬁcation cs? Awargfgfg The Cnntract Agreement was 3*'

-...'--Eem.i§y.W.e.§fere:.ee-LiMED.Medicei..EZa«;ste,.::z;es,..=£§.ed§e}--.§?.et'..§.tci.,.en _ _ Later cm cesrtain amendments in the contract were issued en ﬂ3..€32.3;G3.{3 iecereerating certeh: changes §n eaymeent termg.

5'2«i':~ The Cemmisséen observes that the sequence ex' events reieting to fineiisaticm ef the centres: ﬁn the case revee§s that the teenﬁer ciesign ene speeiﬁeaiiens were not eniy tentative but were eke uncertain. Further, "the terms and cenditiens of tender as regards CW; and Qperatiee araci maintenance (zest were aise changed at the time ef eevaﬁuaiien of fineeciai hide" The inétiak cast estimate was 3550 preeared in a tentative manner as is seen fmm deiiberatiens ef the tender committee. PES in its sebmissiens has stated that execution of jab by it at S§C was undertaken ginee ﬁt: wee asked ize dc: this jab by its princﬁpai Le. Stryker and it had undertaken this job an behaif of this Stryker. However, it is netewerthy that no such jab centres: assigned by Stryker in femur sf FES fer executing jab at SKI has been preciuceci by PES neither any eeyment has fiewn from Stryker ':0 PES. Had: the gaze been performed by PES at the beﬁest ef Stryker, payment must have ﬂaws': fmm Stryker to PES and not frem M83 is PES. Simiierﬁy, it is meaded by MDD that 3': had direct deaiing with Stryker and had ebteined atertiﬁeetien frem Strykezz Same is the stand :3? ?ES but it is eemitted by MED that it had made advance payment for the equeamem is PES and net m Stryker. The stand ef the PES that Mm) had dérectw cmntactee Strykers is eise feissiféed by the stem taken ~-~=-he-ci. eer§e.rmee-:..§.e¥a. em extract at the S'.tE,ii'-i§.3.@5::§;".<."i..A:_i-'--'"::'§i':\;.'i<.El:".. .a.:e_ci mzt. a.§;_.j;i;gV , 2 Mix}.

5,25 ﬂaring tixe prebid eenferencze, the prespeetive iirma raae aiireesiy raised the issue ef restrictive steediticms and had hinteei that the tender seecifieatiene were. designed to wit certain firms. See 0'? the issues raised by the presipeetive bideers, 'thtsugh net 'i'evm,irebiy eeneidered by the tender cerrinwiitee, was to split the weric :3'? M(1i"i' and MGMS. Suibsequentiy, preseeetive eidders, nemeiy, Aicon iviediteeh (2) Pet. Li:«:3., Benszm Medical Equipmenrts and BQC indie Lirriiizeci had eise fiied writ petitiens in the High Court of ﬂeihi protesting against eombining the were ef Mi}? and ix/i(Si\a'iSirit%1einstentten:3er.

$.26 The Cemmissieni observes that in a easse where terieier seeeiiieetiens, terms and conditierss and estimated case are uncertain, firms term} in eeiiude and manigpuiiate the entire bidding process ize "iizeir advantage. in this case aim, wide veriatierz in bid prices quoted by the firme arid initiai cost estimates preiected in the Netiee irsvitirig Tender shew that the firme had taken advantage of iack of exeertise with the tenciering autiierity in estimating the east of the teneer and quoieci higher §33i"§{3E$ 35 compared is the initiei cost estimatee. Wiziie MP2'; had quoted a price 0:' Rs. 36.82 crere', PES quoted a price 9? Rs' 35. 24 crere and MED , 1;} firm quieted a price cf Rs.24.32 crere, higher by eheut 258%, 252.48% anti \\'»\ w. u,' 143.20 % as respectiveiy c0mpare§§I"§E§*i%i timated Casi: of Rs. 19 erere.

3' O ;-€§;2¢t?\-..v....».;3?he. .€§€}ft3:t7¥§§$$§_£§ﬁw'Q-ESEEWQS in such .eit:%et:.m:5.~tee£-es 2-'52§'3!E:~"E§?$¥?3C3.<€3t€--i.§'3v§§§ euthertty shoeid have thougihtfuity eensiﬁerted the higher prices quated by the firms in cempatisten te their ewe estimated tender cast and tnquited whether the bictdtng ﬁrms were quoting imziepenttentiy or under sleme kﬁnd of arrangement. This was pertécuierty requirecé in Eight at sevetai mmmoneiity at behaviour and conduct. at the 'ﬁrms? apeerent ttem the bid documente submitted by them in the Enstent case.

6.28 The Cemmissian on the exammetion at tee bid documents encteseti with the report of DE notes that the bids at eti the three pertées {ﬁpposite Patties named St: the intfermaticm) had? common tyeegrephicet ermts. The interment had atsm drawn attention towards the ieenticei typtsgraphicef errors in the btds suiaméttedtby the Gppasite ?erties.

6.29 The Cemmissiatn atso mates that even in case at Encetrect mtermetien with respect te szertain esgects of the tender, the mistakes have been cammersty repeated by eii the three bidders. For exemeie, the products at TAT!'-x and 3ittDAL which are Bastien companies have been menttiened under the heads at "garfce scheduie far games ta ire imperted from abroad", at the ictenticei piece En tfxe hints at e!¥ the three firms.

6.30 The Commissien ehserves that any ﬁrm weutdt take care white tiiiing up the bit} documents and give the pertimters at the items queried by it in the mice bids cerefuity singeg ejgteswtéen is net eaid it might ,-*"',,.-x"<':'} 2' 'I even iose a etrticuier centrect zttte vﬁ' beds were prepared by F3 we :~;®er's=3n,:-rxsuez-3:2; a-4~::ec§m%;:zTan-vT--arsd.-:;:§ci§.nt§.ca§. E$'.f'{}F 5f';'-.§':£'.«;'$;£}E3v£§'§I'~--Q.f..;§3...;S€33C::.;{3§:x.;;».:,:a.:

items quated in the bids by aéi {ha three firms was not passibie.

6.31 The Cammissitm aiso abserves that as per the tender document, Wise Scheduie M {A} was in be useeé for Rupee items, ibemestic gocdsm"

wreign gmdg faceted withm Enﬁia) anti Price schedule KS {3} was in be uaed for Foreign currency itema {Fareign gems to be %§mpc:rted from abmad}. There were tc3ta¥\ 'E5 items to be qamted by the mmpanies in these price gcheduiesy an the three campanies have identicaibg cﬁstributed a&§ the items under the price schecﬁuies Xi (A) anti Xi (S).

5.32 The i.-1 firm, MDB has incorrectly used the heading KR {8} fm item nos. 25, 2?', 47, "F4, and ?5. édenticai mistakeg have aka been maﬁa by PES and MP5. Such identicai and commcm mistake has aim been made far item Rios. 32, 34, 35, 35, 3846 by 3% 'three atompanies in Price Schedmes.

5.33 The Qemmigsicen further finds that the Enfermant E133 carrectiy brought nut that in the mice schedzzﬁes, Mm} has amendeé the g<3vemment's Qrigir':a£ Farms: and mentieneci different size of tﬁree GT3 an the £139 Left at page 18. Simiiar and identicai §£§£§§'i§{3€'?S have been made by the ether firms, PES and ?»'WS at pages :12 and 6?.

6.34. The Commissirm observes 'c§}§.'§:.:_~§-h~e«~,;C}G after examining the bid '.~'.'\'< dacuments "cf the three partiesggﬁ (sf typogragxhicaﬁ errors

-\ » *3;

~:

:

noteci by have an course of :nve§§t?"at:

3' L.' i'\ ~§>' J e §§'t§<;§rma:1t has am) given a tabuiar farm as under;

bid ii;_{§:£3G:1;§--E?£}:&€?§3{S:..:.i5i.£{3it. em; rs. .

5.550. Uﬁscriptiun tender Form : MDQ 9E5 MP5 4 Winning Biciﬁer i.~3 Bidder Third Bitider Simiiarttiesftrregguiaritiemlommoﬁ in 'Price 8&3 9? Biddars as} i Section Xi On page no. 56 Wrangh; typed as Saint} Earns: mistake » Price Section )=2i(;l\)--Format "Section ix {A} mistake as as M98 Scheciuie in is tr-mvided far Price instead of M03 HSCC Tendieir Schedule "Seaman Xi {AV in Dcxcument Price Bidfsnheduie ta) Saectiazm XE» HSCC price Scheduie MOD on its own T Same Same format as Price format amended the format as used by MDD Schedute in I-iSCC's format used by ' HSCC Tender and mentioned Mm) Documas.-.nt the sizes of 30?:

T on the Top Left.

:2} Civicrates Price Scheduie Xi * t MD!) has qucted CMC rates CME rates for {C} theiawest for five year five year are are same fer same far issing iosing bidder bidder 1" 'fear 109»;

sf' Year 20% 2"" 'Saar 12% 2"' '(eat size»; 3'? '(Gear 15% 3"' Year 15% 23"' 'fear 3.?% 4"' Year 17% 5"' Year 20% 5"' Year 20% TT T ti) Dates of i At anti at each price All price scheduie Wise Scheciuies various Price schedule the date is i.e."A". "6" £30" are without Schedule to he ﬁiied i are dated Same as dates therefure 28.10.?;Gi)9 MOD mistakes did except gsritte mt happen.

scheduie "E"

which is dated TT T T 25.10.2069 e') Aciciitimai T'nes'e were 3 Notes MOD has identiciai identical ccmditions in mentianed amended Ncste 3 conditions conciitimns Price as weii as added have been have been Scheciuie of asked by asked by MP3 Direct import _. _, ._ _ PES as weii. as wail.

items. « T f(s~-,7 ~- T i') Empmted As per tender pri e -_ 'ES has MP5 has items quoted Schedule impart ﬁr Euoted the tgtigted tzht-2 if ' :-'_«._i'i"s..:\ .. .\ . . .

iNR;'Fc:reign in two: ways as per icurrencwiwa currency bidders choice: M ineiow ii importeditemsin BGQ item i'«io,.

garne way same_w;§3?4 :_ _ _ forsaign curreniw 21,33,3?,ai8 in 33 ii} imported items in 8051 item No. F'E.S has MP5 has iNR currency i3,8,9,P.3,24,2S,2t3 quotedxthe quoted the ,2?,28 :0 31, 3%, same way same way 35,36 5;} Wise i)Secii0n «X1 {A} is MOD has wmngiy Same Same mistake Scheciuies 'xi meant for items to used Tug: ii-eariing mistake as as that of i3ES {Aite){i'3~} be quateciiiniNR ' Sectimi-Xi (8) far that cf and MUD. item nos. MUD.

26,2?,li?,7ii_,?5.

Alithaugh Secizmci heading is é correctly written as(A}.

ii) Sactic:m~)(i {3} is Mm haswrzingiy meant for items 'ta used Section X! i be quested in (B) for ma item Same Same mistake respective Fcrereign nos. 3-2,3£i<,36,3S mistake as as that Q? cmrency. to 46. that ax' MUD.

MDD.

hi Heading {if Heading is "Cauntry "hi" is mistyped Same Same mistaiie Cuiumn no.3 0'? Origin" as"o" mistake as as MOD. csf Priize Mifﬁb.

Sciiaeduie Xi US} i T T

i) i-ieaciing of Heading is "Brief The Aiiahaiaet "g" Same fun': Same fiynt case Coiumn no.2 Descriptien of is typed in smaii case used by used by MOE} nf Price fscmds" case as "go«:ids" i\.'ii3D Scheduie Xi {AND} 7 7 3} BOG item Heading is "Waii & The alphabet Same Same rnistake i'ii(Cf-.3. of the Ceiiings" is missing imm mistaice as as MED tender "Ceiiings" 2; MD!) = written as T T "Ceiiing" j k} i EOE: item no. in the first Sine there The hw,2;3hen Same font Same fem case 1 of 'the is a ward "pre-- between winrds caseused by uses} by MOE} tenizier iabricat-ed" "pie" 8i Mitzi} "iabricatei:i" is missing and mentioned as ";;n'e fabricated"

E) 8:230. item nu' Heading is The aigshabet "'P" Same font Earns: font case 3 Of the "An':ifungaiPiaint" case used by used hviviiii) tender }-°"" iviDi2= mi Bﬂiliiem am. Second East ;*vii?'§§_ " Same Same 3 of the "Wait " ' I W§)0gi"a}Cii'iiC tvpegrapiiirzai tenciea' S\;5i:em"' 3 aimistaice as mistake as j V. , _. Mob n} BOC2 item no. Heading is ":"'E'ss=.~ aiphahezt "'S" Same font Same font case é 4 of the "Hermatica§i\g is typed in smaii case used by used by MD!) M tender Swiss)!" case as "ss2aied" MED 0} BOsZ1it¢2m no. Heading is The aiphabet "S" Same fc:«nt. Same fem case é S ' of the "Hermati<:ai§»,* is typsad inf smaki é caste useai by used by MES) ' tender Seaked" case as "'sea!ecE" Mm) 51:} 80:? item nu. The item quantities The aiphabet "n" Same font Same fent case 4,S,5,'?,3.[},11, are mentioned with is typed in case useﬁ by used by MUD 12,13,14,15,1 "nos." uppercase as MUD 6,1? 3: 18 (sf é "N05."

the tender cg} Bﬁﬁﬂitem no, Last ﬁne is "as per in this item rm. Same Same 13 cnf the tender techniczal the word abbreviation abbreviation as tender specifications" 3 "'S;:+ec§ﬁcations" is M as used by used by MOD written as MED "specs" whereas at several other mazes they have wrétten conapieta word "sps:cificatEora5"

cmfy.

:r} BOQ item nu. é 1.6 mm "thk" week The ward "th%<" is é Same Same 15 of the elaborated at ahbreviatiun aizbreviaticun as tendszs' "thickness" as useasi by used by MED _ _ MDD

3) BBQ item rm. "::wer§apping" goint Tm: ward Same Same 30 of the corzrmcter "overiap;:xing" §s t'y;3:)graphic M typographiwt tender mistyped as é a! mistake as mistake as "m.«erezapi.ng" % MUD MDD 5.35 The Cammission observes that the abave cammsn migtakes in the tender documents cieaﬂy ghew that there was a meeting of mind amcmg aEE the bidders. in bid ducuments gush a iarge number of camman errmrg can oniy cmcur when there is understanding ammng the biciders and bids émcument have been prepared in mutual conauitatécm with each ether.

6.36 The Ce:)mm§ssE0n notes that theggiggers have tried to justify these * " ":'.'I\:

'''x«' W,' (1 1'\\ I.' \"

errors saying that the ermrs vveggi Q:-:'-' ' ( A7?:3\1g§es and net in prices and \ if ':2 these errors in price s<:hedu§;_ gha . .~\ 'pt jig; 'since they were typed E' S ' R E I'. .

~. "' ihrcmgh. one common ~5m.er.ce at e c;<Eee.r.eee§e.;.:vT%§.e .Cemm.§es§«a..n: Qh$ei'.\!EéS_ that the statements £33' the biﬁders are c{3:':ts'a€§§e:t£3r\; ﬁr: nature on this issue. PES irsstaiiatien vicie ietter dated 2§.{3'i.2£313; with regard it) identicei tygmgraphicai errors in price scheaﬁuie has stated as foiiawe.

hefere the BS: ' "Generm'iy fr: mast cf" the efsenderss the Price Bid farmer £3 given by the tendering authorities. But after coming in knew ebeuz' the new avaiiabiiity of the Price Bid farmer frem the tendering aufharities in the Price Bid meeting hem' on 12.1G;:£2(3€19 the Price Bid format was required in be typed and prinieci by the }'"em:ierer themeeives. As it was an emaustfue fwrnaf cansisting of seventy five items wit}: their descrf;3tians,e the efficiais ef the tendering cempemfes theugizt it eonvenient 30 get it typed from some neearby ceemeuter cafe. Hence the fermm' get typed wmngiy by the typist with some typegrephizrai emxrs and the Price Bidfsrmet was obtained by ear staff in the Eiectmnfc farms: frnm the cafe'; That may be ihee reascm for similarity ef mietekee in She Price Bid format 9}' the tendermg bidders".

5.3?' Shri Raian Verma, Girectore, MES Medics? in his statement on 28§?.2€311 before the 36 has steteei as fcﬁéews:

Q1 it is f'3{3fE'd fmm the cemperatfve enaiyeis ef the prise scheduie submitted by PES insteiietione, MED Méﬁiﬁﬂf and MP3 in the 3&1' 't'em:ier that verfsus execffy simiiar typsgmphfcai mistakes are smtfced. These mistakes areﬁikée .k£;e yen: and cieariy refiecf met \.

, \' =:a.'¢.« the price schedufes ee three firms are m:m'e

- - :«e......c.e!!eevtiee.fy in eeesreiieiienwith.--;.eeel2;.:.etf:e:y,~.Efeeee cemmeet em' ..

.#§:"?5. 1 expiein the reasons thereof.

The tender were pebiéshed an Q1.;€i3.2'Qi3E? end ,ere~é:2ie' was ceiied on .'i.2.10.:z'¢'}G§ es rnentfenee? in the tender decuesents. .4515 per the tender we have seen that there were we ESQ mice fermet one format was an page No. 55, 5?, 58, 58* of arfginei tender daeuments. Second mice former was an page :39, 335 ii: ESQ, During ,ere~'b:'d meeting of 12.19.2009 there were for ef changes were disezzssed and same were upfaeded er: 22.;ze.2eee on HSCC website. The changee made during ere--£9ie' were quite eignificent me' sseme hes ﬁe ﬁe made in {he tender bid easements. Sfnee time was short and there were fat of things "re be typed we have asked fram H565 to prczrvide us the corrected 8062 price former: wfth ah' the changes being erepeeed by them. Cap}! 0}' the garewbid emencfrnemfs wiff be eubmiftee' by 03.83.2811 which wéfi reffeet the changes undertaken ey HSCC after the p:*e«-bid' meeting.

Up£3r'i Veer repeated requests we were abfe re urwffieiefigx precazre the revieee' prise eeheduie ferment frem HSCC in 5:13': copy ﬁr: pen drive). Hewever, since time was sham' MEAD bee used fee same format urmfficiaify given by HSCC. MED came: mnfirm neither is aware how eh' these fyrpegreﬁﬁicai n7£ste!<e5 have happened in the _,r""?:"<$:\ V X 3 i:

it price schedule farmer , ., ,, T ge sxmsier Wm: PES end iue MPS---. "' G1.€}8.2B3.1 befme 86 has stated as Lmséer:

in it is noted from thef campcwrafive anaziysis 6)' the gzrice scheciufes aubmitted by PES insmfiatiens, Mai) Medfcai and MP5 in the A SH? tendar that vcirfms exacfiy simiiar fypagraphfcai msmkes are neticési. 'mesa mistakes are sfmwn is yes: and cieariy reffect that the price scheduies submitted £2}; 55! the three firms are made callemfiveiy in canswtation with each z;>t:'2e:'. $339358 cammemf and expiain the reasans theresaf.

Ami During ,ore--bf:;i hmeeﬁng was aimgwith other hfdders hard requeswd the authorities {SIC tender) that the time for submfssimrv the tender is very sharf hence, the mite «sf submission shctzuid be extended. But the aufhsrities derzfed saying fhaa' this is a time bound pmjest far CW6 and we mnmt extend the date 3;' s:.:£'m'H's5is:m of tender' instead we can heip yea: war if ysu want we can give yam sag': copy of the price scheduie which may ﬁefp yes: in reducirzg the typing wark and En subrnittfng the fancier in time. The price scheduie as shawn ta me in the SH: tender psariains is c.zrou'nd 3 X years ago and as far as i kmw the bidders wise were interested in procuring the saft mp}! cf the price schedufa has caifected the same fmm the govt. a+uthorities during the pre~E3:'{§ .5 V "€'="'€§-:38 '¥'{:<§§i§*é3's%entavt§x:e3 <3? ana-*che:'*A§ir:m,-«M Qﬁvin-=--?the. -s;*.ta--i:--.amem; Tre--§;:s_;¢d.e.;§.::;{:;».g~;:.:-- ._._ ..

"'e-€i'?'€E'*v?'.'?.€'%'E3={£*:"'€£'{-E --~e;' . preeuremen--€'»'~e§ .»t§zevér.e pszfee sehee'uie . fesrmet. '«._ ~ weufe' fike is state them the price scheeduies were never made ceiiecetivefy 0:' is': ceneuitetion with Mm} and $353 as stated weave."

3.3?) The Cemmissien mates fmm above the': MP5 in its submission has cenﬁrmefd that due 'cm the ﬁmiteﬁ time fer submissien of tender the safe - T cepy of the price sthedule was teﬁzen from the govt. eutherities ﬂaring the preesid meeting. Mm} eﬁso stated that 'time fer eLsi"3mEssion ef the bid was Sher': and tﬁey have unefficieiigr procured the price seheciuie fermat in seft cepy {in pen drive} frem HSCC.

me However, reereseentative ef PES én its statement befere the SS has submitted that the price bids were typed in cyber cafe and the cemmoe typegrephiceé errors wag can eceeum: of the errer eemmitied by the pergon in cyber cafe who heci types} the tender price scheduiee 6.41 The Comméssien ebserves that the aferesaici centradéetery statements show that the bidders were net florizhcemirtg in their submissions. MDB and MP5 in their regpﬁee before the Cemmiseécm have suitrmitteﬁ that their employees hat} eccczmpanied eireetor of P53 te cyber cafe, a fact which was net known be them at the time ef recmdéng ex' their statements before Di} and they have come te knew the same at this stage eniy. However, the :~ep;;§g'%ifé§' "e*EQ*e the Cemm'sssi:::sn after '.J'\;\ K §;_gs:fg'sg en' DE does net $03!»:

.31..' having the benefit «:3? game 'sir 3:

. . 55> . .«1*_¥. .

s::m\nnc:ng. There are not ersiy amine d :£?;er_?t:{:e§ type erm:'s if': the = ' ~\ 3' W' " xqiw' \ ~' ;/' 51 ...»r's.-§3=§5§§€5r5e$h.&dL¥-§~E3~5:~y§;$E§§'{t;s»£§$E}§"§'3§'I}€3'¥'} giates heee EE§;§Sr>i'?_2;«§I§€§.»€'.§'1;§§§.§.€E§'§,3~§}_«§§"g:,.§;§=§e\r5>,;at1§{§t§;§5--.. 1 serctiensof tender forms by PS3 and M33. Manet of the three bﬁdders in their repiées tn the repert of B6 or in the statements meée betere EEG Ctisciesedttje name at the Cyber Cafe wheretrem at? the three bidders aiiegediy get the copies of price sczhecitzﬁe typeti er preeared. it 35 unbeiieveeie that the GPS whe were geing ta bid fer contracts warm crores of rupees and whose armeat tutnetsvers were etso in crores weuici use Cyber Cafe' for getting the bid price scheduie typee. it eiso cannot be a mere: eeinctdence that theugh different stand had trees": taken by the (BPS eefore US, the stand taken he aﬁi the three {We before the Cernrnissiern is same.

{$.42 The Commission netes that whiie at tame ptaces ef the tender form, the date mentttmed by PES arse M91} is 26.19.2039, in ether pieces at the term bath the firms have mentioned the date as 28.38.2863. Unietss the twin firms had entered inte temmen understanding, it was net possibie ta have common dates at two pieces in the price bids. Even if the versicms ef the firms that the typo errors had crept in C\,'§3e§" cafe were ta be accepted, as per the statements at 9E5 the eyeer cafe was approached the same day when ere-bid meeting had taker: ptace. The prehiti meeting had taken pﬁece an 12.1Q.2€3&9. Thus, cm that eay, rzerteimy the dates of 26.10{20ﬁ9.§fte<-*Z%~§;,;B¥g;t3t3§ commtm to bath PES ..

Mm) weuid net have been . A {gs "§ C1' ' I xi=r'i::.se.rre¥=gr::s:r-irea=«er§ee=«serre:e§.r:rE«es- were .tyr.zeci-r>§'rr rerfrrer:-eerersrerrr 3;3.;.:1;£3;;3:=€§r£}$}.:..~-

and prices were typed on e riéfferent dare indivirieaifgr by rear) and PES as:

has been argued by bath these firms, men the dates on render ferrrrs in Ewe different sectiene of the tender forrr: weuid net have been identicer. This indicates that both the price scheciuies errci erices in the render ferrn were fiﬁerr tcrgether by the firms in due crmsrritatierr wrth each ether.

6.44 Furrrrrer, $¥CfHSCC had aieo provided not erréy the price scrseciuie format but eise verieue other farmer err its rwebsite as has been reported by the DE. The préce eeheduﬁe farmer which was prescribed by the S36/HSCC in their tender decumerrr ciees not have these typegraphieai mistakes as rretéced in the price sehedrsres of these three mmpanies re. M03, MP5 and PES.

8.45 Tee Ccrmmissiera therefore ebserves that the Ecrenrieai typegrephicai mistakes Err price 'farmer suirrrritted: by the three parrées was an account mi' sharing the sari car»; of the said farmer by these three bidders fer the purpese of preparing and ﬁiiirrg the render decuments regether. A iarge sceie sﬁmiiariries in the price scrreduie format of M233, MP5 and PES es irrdE<::ered Err 'the preceding eases ceuid enﬁyr be en eccourrr ef metueﬁ crmsuitarierr ameng the three firms whrcrx cieariy esrehiishes that there was meeting 9%' mind ameng them.

6.45 The cemrrsoneiity er the mistakes in the tender form submitted by taken a stand that eii the parties ﬂied ;Zi€"§C.E' quetetiens at their own respective offices' Gee can understand Emewﬁesrige at PES abeut its ewe bid. Haw weuld PES knew that other We parties had fiited eeetetiens at their respective effices. They ceuid have tiitee euetetien at the muse of ME) es' sitting in a Cetfee House. The iegit: given by WEBB that e person having expertise and exeetience wi§§ aways quote a higher mergtn/eteﬁt rate and theretere, PES wtzo was having expertise and experience eueted mete prices is devoid ef merits. A person having expertise and spedeiized ktzemectge wiii net have to hire eutside experts end weuid, therefore, quote as most cempetitive price as cemgsereci to the me who has rte experience and has to hire eutsiee experts. Since as per MED enly PE'; was tzeving expertise, experiences ene menpewet for etectien and instaitetion of Strgtker preeuct:-3, it gees without saying that men had te first ask PES as ta whet weuid he the price charged by it and then (my it ceuie have queted in the tender, Since PES was eise ene ef the eempetitea", FEE wetﬁe have clefinitetg known what was the priceftete teid by it to MSG amt had it been interested to have the wettest for itseif, it weeéd have definiteiy qee'tee tower price, but the facts were eitegether reverse. Whiie M39 queted kswer ertee, PES despite taeieg aware of the price tetti by it to MQS, quoted higher price.

6.1113?' The Commissien eise ebseggsxeejg h' tee statement at the three /tgerwtse was there new in ,-,1. t Eeeenee; in tight ef the feet 3' parties that the eems11oea§itv_$sﬁ%f§: ', \'$ 3 .2 price sazhedtztes erect net in t§':§e-»;:>§*iz:e '\ \ .

. have rat:es;.\i\!'i1Eie MED , the Lwi firm hag quoted the rateg in absciutte figutés , PES and §\;'iP{}, the ioging firms have stthmittetui identicai CEVEC rates' Pricg sctaeduia fer comggiftaittitze Anntgai Psitairitenancg Eeztttact gfter wartgntti geriad iﬁgctian Xi»§_} 5.559. Name 1" Year 2"" 'tear 3 3" yam' {Year 4"' YeatTT{'s'ear 5"' 'Year {Year 5) {Year 'ii i 8} 9} {Year 13} 1 1 M99 ss,e:3,eau={- 35,99,909!» 1,25,na,sm:;-- t,4E§,£)i},£}Tﬂ0f» 1,5s,.:3'a,um; 2' MP5 T 10% 123?; 15% fi?% T 20%

3. was was T T 12% 15% was 2:29;

6.48 Huge difference in the biﬁ rates between the twee iosing firms and the i.-1 itidciet fur main pmciuetts as weii as for {MC and Gperatian arté Maintenance casts Of equipments qzmted aiso suggests that the other twa firms were mt interested in competing with the Lwii ﬁrm otherwise they wcmici have minted competitive rams, 3.4% The Cammitsicm observes that as per tender cesnciitions, oniy thcise entities were eiigibie to bid wim had carngjiiateci at ieast one pmiect «mi simiiar kind during iaist three years to §3xéi~€i0 Lakh Cit' abcive, This aspect .~ \.'.'.'*~» was ciiscusseci in ;:2re--i:1id meetﬁgg j t*;<:;i;§'i;:§\L'Product Services was net 2 eiigibie ta hid as per this *'--?..

\i"§€3\.'§§{'3_;'.-%i", it stsbntitteti its bid \\ \ \.\'.

~¥€r37€3w§'§*r~g»;*°:»xn:£~3§i1Vthat~=§t:v~w£m§€§--b&3 :r«a§er;te::3i:.--.Wm-n«=;--the bid C(3.flC§§.*£§€}:€§$,.§g.ge:§?a3.,T ansmumzed in advance and pre«§3~§a§ meetings had aim taken place, knewing fuiiy that it wauécé not succeed, rzsxrmamx MP3 wauisﬁ have not {submitted its tenders Eika the other firms which had' particépateé in the pm-b§ti meeting but finaiiy did not submit: their bids. The pies taken by MPS mat it ccsuiad mi: have particigsated in the bid ﬁgging sings ﬁts technical bid Etgeif was reﬁected is equaﬁy a frivczious gzeiea. it had Suﬁamitted technicai bid and financiaf bid akmg with other bédcieré. As gaer Govt. rmrms, minimum 3 bids shauiti be there for ccmsiciering any purzzhase. "fechnicai ané fim-1n::§a§ bids were tagether submitted by MP5 and the record shmws that iV%PSs ﬁnanciaﬁ bﬁd was openerrﬁ and mnsiciered far mmparative purgasse. it mrﬁy aeems that MP3 deiibarateb,-* fiéed fsié so that the entire bidding prcscess may net be rescinded.

8.58 The Cmrnmissian firms that the canéxsct of MP3 makes it dear that it was mt acting Endependentiy and was acting in cons.::es't with czther bidders. MP3 submitted biﬁs far this cmmact in order in give sembiance of a. generai csmpetitive bidding prscess to the contract. The whaﬁe sequence 0%' the action cf the three bidders and the manner in wmch the price quatatian has been dune by MES anﬁ PES Eeaves ma écubt that 3&3 the three were acting in cancer: with each other.

8.51 The Commissien further Qbserves that {me :33' the items required for {car which MDD approacheci 65 in india happens 'cc: be PES V ~'§ rtstai iatiarts1;*?'?1":tt't::wetver;-- --~*PES'.'-(ﬁt? ~:--ttt3t.:- tttsitzszt '3:~§"§r':'-*:=:.'§s?tt3i5. that , Ni Qt} . ~.--w,as2, Q: _ ..

getting auttmrtizatitrn from Stryker tr: quote in the tendsr at SEC, where PES was aiso ctsrnpetintg. Atttmugh the garaﬂutts at Stryker quateﬁ by MDB mrtstituteé cmiy about six percent of the entire project as brrojsght out by the ﬁrms in their respanse before the ticzmmitsian, as any narrrzai crzsmgaetiter, but PES was mt aware ttsat MED had onty quotes? few at the StryE<er's prtrsducts. This wrmid have been tearrrt by PES arziy after the biﬁ waa apened and befcsre the £333 was open PES shtmici have t3b§e::ted not only to Stryéter for giving autharizatécn tut MDE} hut stmuid aim have made their nbjectiorzs known ten the tendering crmtraittee of SAC.

6.52 The rate for Stryker reﬁated items quoted by MEBD was atso tower than PES as hat aiso been admitteti try PES. This was atsa tmusuai since PES being the tieaier rat" Stryker shauird have tgutated mare comgtétitive price comgmrecﬁr to MDEI. Moreover, PES has quoted atmost dsubte of maintenance and operaticm charges compared tn {WEED which it aimast mt naturai tacking at the fact that it was PES mix; which hat} the exprertence at irtstaiiation czf integrated items :3'? Strytzer.

8.53 The Ctzmmissiorr mtes that the items gaertatnirag tr: Stryker were aiso procured by MES through ?ES far which aévarzcrs was aisa gtvert. The work at inttaitatian at such items at the hospitai was aiso awarded ta i-"ES by MED. Thus, in effect tha tender was ﬁointtyshareﬁ by bath théfirms ~ NA __"

PES and mt). Since res was uit'§_;.>¢37§t and suppiy of certain prodtsctsgcirgltha .i.m$iie$\. the:t;:'.::i?i§i§» si3bn3it..ted»:;es "t;{}i;§u$'§"l:w:~::':§'§:€§'figRig ?§e*ii§~i3?:.-»~ite.;3t enotsgh;

£i.iSi'iiOi"iSi in his quoted biii price {mater an Lmtieretaniﬁing with PES ta share the e-refit earned jointiy taut cf the contract fer the pmiect.

§.S& The Commission further abseivee that the {rewarding ietter of MP3 ta the tenderihg agency entiesed eicing with the tender term is cieted _23.1{'i.3QQ§, Hewever, the said ietter aise mentiene as under;

"' We are cfepesiting the earnest money wide Bank Gurrcmty ne .2384 ;i8:3~lS~G9 DT 25~.iﬁ~2ﬁﬁS far fi$.2£},{}£3,30€3/'~ {R5, Twenty fake': erziy} wife' for 180 days issued by ﬁanare Serik _, Kim' Wager, New Beihi» i10.{3.:i.S:"' 5.55 it was not possibie ta give cietaiis of bank tiraft detect 26.13.2889 in the ietter dated 23.1Q,2{3i3§ imiess the ietter is aim of the same air at a subsequent date. Further, S'./{DE}, the L»: firm has ericiesed the ietter sat authorisation dated 2?.3_{).i2G£39 tram Stryicer for quoting its; items. However, it had eireedy fiiieci up sectim: Xi ({2} tn' the bid on 26.1.€}.28{}§ as it appears tram the date appearing can this part at the bid decument. in case at FES, the ferwariiing Eetter emziosirig the izsiiti ciecuments is dated 25.13.2509 witiie the mice scheciuie is ﬁateci 2833.208? except for section Xi {(2) at bid ciczcuments wiziciz is dated 26.18.2389 an the times at EVEEDM.

6.58 The Commission iebserves that the afmesaid cieeriyi brings out that there was meriieuiation 0*? entire bid process in mntraventien at the {3} asaociwtians of enterprises or persans 0?' assczciations sf permns er between any person and enterprisié er §3F€3Ci'§€E carried an, car decision taken by, any asseciatizm af Ef'ii"E'i";3f'§S§3*5 car arssacimfiesn {if pergons, inciuciing carteis, engaged in ideniiciii ear simiiar trade of goecis er ;:}i'{}V55iGi'i cf services, whichw Ea') idirectiy C?!" imiirectiy msuits in bid rigging or miiiigixie bidding, Shari! be presumed to have em izppreciabie adverse effect an cornpetitian ~m«~~-

E'xpia:m€icxn.~--~For the ;f}Lii';}0S€5 {if this subﬁection, "Exit! i'igging"

rneans my agreement, between enterprises arr f3€f'$G:°'i5 referred to in suizz-T-section (3) engaged in identicai €13!" similar pmdusiisn or ﬁrming cf giaads er prawisien of services, which has the effect of eiiiminating or reducing campetitizm for bids ﬁr adverseiy affecting 53$' mcmipuiaiing the process for bidding.'"' SS? The partieg named in the iniarmaiiicm have manipuiaied the prczcess 0? hiciding by reaching an understan--2iirig amang them rm': ta compete. FEE and MP3 submitted 'szmnpiementary' bids in wider to pmvide comfort in the procuring authorities that "C§'3Ei'E are three bids in respcmse to the tender Enquiry ta amid any questiztin being raised er: iack cf competitian in the tenéer pm<:ess. These twci entities were mt pariicipating in the bid §:)3"0CESS ta: compete with M33 but they wme aniy submitting 'c0m;:siemientary' 'cover' or 'courtasy' bids so that the procurement pmcess cities not get staiied due tn the iack of enough competiticm. Compiementary ibEddin;g,.i§«~si a when same competitsrs .-1'" . .-.

.5" =.1-Q3». .-.. ~ .-

3' -\'_\fx. V .\ 1 agree to submit bids that ieithei;;&"% accegateri er contam is 9 G?

.«' théhﬁyer. Such bids are not desigtieci T to give the egagiaeerence of genuine eempetitive tsicieiing. Cempiementary bids tene te cietfreud executing entities by creating a cemcstiiiege at genuine CGf'i:3§)Etii:§G'n tea cenceei the inﬂated iaici erices. Furtheif, in enetiier tender at i¥>NA Hespitai isueiect matter of enetiter case tie. iii) of 2016: against the three hiszieierei , the eentreet was awaifeee te PES wherein M38 and MP5 submitted cemeiementary bids in meet to Show that there are eneugii competing parties in the tender.

6.58 The Cemmissien eiiiserves that the process 0'? izzid-riggiiig by the eicidets have caused harm te SKI are Government when were in feet the maturing entities and tfierefeire the consumers within the meaning ei' sectieri 26%) ed' the Act. The items suppiieci by MED to SEC were at substentieiiy higher rate as tempered te the iendeﬂ cast in indies. "this shews that under an uriderstenciing, firms have reiseﬁ the cast :3? eretzurement at the gevernment suiosteetieiiiy. Git examination of Biii ef Entriee 8: impart ittvaieee of iiﬂilai}, BS has noted that the iettdeﬁ met at the EfC§t§§§C}f'€'ie%'F'£S and the ctzstem duty paid by MES i3 very iess as cemeeree te what was qtzeteci by it te Sic. Therefore, MES by eseeieting the seiiing price of the equipments cempeted tea the tended east wee able '23 make huge pretit5.i ' =25etee:ei~eei=--*s:.t:e=:«.eeetire. the .-e=eee';3tem:e {3:f«....:§i'7';::::§3"?7€3§}§ai??:E§5;}'::e«§?r§£i2.:'.E}"§?.&:5,-:\si§'3f&'33§§«hf':..~.:v §.i\io. M Name of the ca-mpenents SEC pricefunit as Pricefunit ae per at cast M cguuteti by Mm} bit! of entries esneiatinn M submitted by Man Fenian t$.i{. {Veiue in G39} 1 imported Terminai Linitsigas 353% é Outiets points) {BQC1 Ne. 62.) 2 tmpeirted Duplex AG 55 System {BBQ No.67) is imparted " T ifanedizezi 333% :2 ~ .~«- .. - ax'

- V-ww - \\"-N . s i' '~~:;::...;f.§.'.*E:3«-*"

_ ;. $2s;:rn§:>1u;::1.:.§3§;z§x';.0x3<gs§n_ ¥?iew_ % = meter with Bsjbbbe humidigen Emma: {BBQ f~Sn.?'{3} 4 imparted Ward Vacuum Unit 200 431,5 43%;, { BCEQ N0. 71) S T imparted Law Fiﬁw Xﬁiard 36¢) 33,5; 23 Vacuum Unit {BOQ No. '32) T53, Maiaysia {Vame in mdian Rupee} S lmporteczi Gamer Guard Rs. 10890 Rs.17?.3.S? 380% Pretectiané System {ESQ No. 29} 7 inwparted Ceiling Cubicai 35000 22322.49 153295 Partitian Track {BBQ N«:s.3G) 5.39 Cm the basig of abave findings of E6, the Cemmigzaian observes that it is dear and evideni: that there was a huge cast escaiatitm in the medicai equipments queted to SEC vis~a~vis theér cost 0% gsrccuramemt by the successfui bidder.

5.5% §3'ur'{her, the riggirzg :3?' £3365 has sestricteé faiy competitim in the market. But for the agreement among the 'chs'ee 'firms, 'me tendering autémrity wouid have to canceﬁ the preceas of tendar and ﬂoat a mem bread based tender inquiry. Thus; mmpetitism has been adversefy affected in the market due in the acts and conduct sf the parties in terms «sf ;:wr<:wisicms mi' segtimn 33(3) read with seczticm 3(3) {:3} of the Act.

6.61 The Commissicn aiso finds that the firms were successfui in their endeavour of csxzséng £335 ':0 michecguer since the teazhnicai and fénanciaﬁ evaiuation ezzsczmmwcee of the tender dié not adhere ta the §nit§aE tender conditians. item iii of Secti0n-- 3 carrieci the stipuéation that the bid evaiuaté-an shaﬁ be carried out an t%h§,,§_:;§"§v"

~«~'f»\-€27-~ sum grime incéucéing 5 years wa§{"§:§§y, aperaticzm and maintenanca eff *-at tn' aii ir':c§u$§ve mmp MC and 10 years dé'teM:n' camgaietian :3'?

~~. - :ies~ra§.¥et§~::mv. _'Th§.s W'8$r=;=«¥?Ei§3XE3.€§ at theestage..;§é§r'iE:nee-ie.eeve%ue3;§grr.:e§,e;§r§;;,,..3?%:}_i.g,. L was dame prebabry is keep the finaé bﬁd price cicsse t0 the estimated zest sir? Rem crore. The price hie er the wirmirsg firm was er Re. '2&3,2SS,4€}6 24 (2er32 cmre). Hewever, finrﬁirzg it teeehigh frem the énitiei erojected cost. of Rs. 19 crere, zthe Ccemmitree rear 23 view net in crmsider the 5 years subsequent CMC and instead ef 1Q years, Ogfrfvé charges were assessed far 5 yearg Qniy.

53,62 Thus, the firrai contract price; was brxtmght riewn ertifirzieiiy to about Rs. 15 crore'. Hawever, if C¥\f3€Z fer 5 years and eewr cesr rm entire 3.3 years re taken irzte accrourrt as stipuiated in the erégénei tender ccmrﬁrriens, the rctai test .3? gmrernmem, wrruid ultimareiy be around Rs. 24 crere eniy. The Cemmissierz feeis that a better tender design anti better cost estimation wrou%s:£ have awarded a situation where winning firm was ewareed cerrtraczt at a price ewes': 142% mere than the estimated ceet of bid.

8.63 The Cerrrrrzissiorr observes; that whiie there is rm evidence er 3 written agreement amcmg the parties, the evicierrrzes breugrtt cut above are eneugh ta condude an urrcierstanéing er meeting :33' mincés amerzgsé:

them to menirauéete the eracess of tender in the instant case. Any party who is part cf same kind of understencimg which is net acceptebﬁe in the . 'KN .vP"':'ﬁ"(_ .

eyes of iaw wiii tend to mergafgéﬁt rtfkprecess of tender in gum a 2 '<?_--\-.'' c\'- < ?\ "rarer; r the minds of precurzng : 7»3>;§-u' ' r '% Son manner 'l.?'\"§'!§Ch CHDES $38':

' 35 /,c,_, '5'.i.u 'a:.;sthc>r§"§§+e-5.-e_=%~%asxarevcsr,» the :.;u*.m:ur§ngT.3mther-iA?£§es.-.s§*:<;::u--§:§.L aése Egg;-»:x<§g§iA&3~;§}iA emugh ta recagniae the signs of coiiusisrm from the zanduct and behaviour of the parties participating En the tender §'.3:'ﬂ€:E55. The cammcmaiity ax' emzxrs in the bid documents, abnormaw; ¥':ig%*: bid prices quezsted by the iasing bidders as compan-ad in L1 bidder shouid have pravmked the gamcuring entities to ciximbt the entire process. Since the pmczuring entities dicé not consider ii: fit ':6 cguestian the bidders, the contract was awarded at an abnermaﬁiy high mice quoted as compared to the estimated cast.

€3.64 The Cmnmissian wme haiding the thme ﬁrms §n ccmtraventian :22? pmvisietms of section 3(3)(d) sf we Act 335:} mntas that mm Centre? Vigﬁance Ccmmissian and Comptmiier and Audii:«;::sr i3%er;e:*a¥ of india have aim adverseéy commented on manipuéatéan 03° the pmcess of tender by these firms m various government h:3spi':a§s imziudﬁg the instant tenﬁer. The Ministry sf Heaith and Faméiy 'u'\/eifare smuid £001: mm the procurements in such hc:sg3ita§5 and take suitabie actkxn 1:0 prevent rigging 'cf bids and Boss to the gmvernmem: e>:<:hequer.

mesa 2: Whether éeaiership agraament between Stryker §nﬁ§a Wt.

Limited and PE$ Es viaiative :3? the pmvésians 9? gectian 3%} read with gerztmn 3m 0% the Act?

8.65 The Cemmission notes 5*' 3 2 12':

Stryker and PES Enstaiiatians i,m@§ P E) Q» ".3. -.§~ I. . ''.x'~.-' .:

C', .3;

~ ;:--:.ee;ex<:§.a;As;ixz.,e;-« :se,ee:£ee.»a.n«:i-:-eistrib.ut§en- 3%?'-ee.me4nt. and is . t%"a:e1r.e°fe:ie._>eia§e:2ee»»ee€ .. . .. .

section 3(4) of the Act. The Cemmissien nbserves {hat DE has reecrrted that Strykea" mdia hag entered inn'; 3 cieaier agreement with FEE in Becember, 28538. Point 2.1 m' the deaiershigx agreement states as under;

Paint 21 ''The cemgsany hereby appefnirs the Qeeier and the Qeeier accepts such appointment as (1 mm exciugive dealer for the campem: far: {I} The prommfian, safe ens? supply 3;' five pmduct; and/er (ii) securing and fuifﬁfment of Benders in the Terrftery subject is end' on the terms and conditiana of this Agreement (the "'Appcintment"'}." 6.55 Further, paint 3.1 {g} and 3.2 m' the me states es; uncier:

Paint 3.2{g): "Not to directiy ar indfrectiy manufacmre, buy, seff, premote er dieirfbute in the territory any product whicfz ::«:3mpei'e5 with (me or more ef the praducts far the whefe dcsrzﬁian af this Agreement uniess with the exeifcft written wnserwf of the zrormzscmy in which event the cempartsy may at Efs safe eption, eeiermiee thee the deeier Sheff rm {eager mi! the pmducts ceneemed as $3 ﬁemfer ef the eempenyﬂ'.

Point 3.2: "The iﬁeeier may not appeint any sufaaieaier except with the priar written consent fmm me Cempany. Such ccmserri may be wbject is such cenditions as the Ssmgmny in its safe dfscretfcm may decide."

6.6? The Cammiseicm from the efz3resa§d mates that Stryker has reaserved with itseif righﬁ te anemia: any other entity as ﬁeaﬁer far éts pmductg.

Hewever, PES timing the currency ogegeeemeswt is not supposed to deai ff. ._\\---.

\ ..

with preducts of any ether .:\{.

a1ﬁr9§§3e express ezzenseni 0*?

Stryker. {W '95' 01> "

4' :- ;. ..e€%.;:5S\.,The;.;;€2e--s:em.isr2E.::m....:3.iaseeryes...,..'£he3r.;;e:r§;sxz§_s;E_onr. of exe¥us'w:eV e:ep§:3_iy aed dietrébutiztm agreement as per sectien 3(«f1}{b§ and 3{£1){»:3 and ofvthe Act read as unéer:

"" Semen 3{£){e} Any egweemerar amenget enterprises er perwrre at aﬁfferem' emges er levers ef the procreation chain fr: different markets, fr: reepeet of pr'm;iuction, suppiy, cfisrtributien, szferege, safe or price of, or trade in goeds or previsiarr 0;' services, i:'?Cfii€§fﬂg"* {GP-;

fbjexcfusive suppiy egreemernf;

{C} exciusive distrifsutien egreemerstg (£3) efmll be an agreement in eentreventfen sf sub~eer:iien ;".'£} if each agreement Causes or is iikeiy ta cause an eppreeierbie adverse effect"

an competition in indie.

Expianatien - Fer the purpeses of this sui3~seet§m'z~ {{3} 'Exclusive suppiy agreement '' incfudes any agreement reeirrefing in any rrmnner the purchaser in the course 03' trade from acquiring er etfzerwise dealing in any geeds other than fheee cf the eeiier car any other persen, "

(:2) "E;<:cIu5§ue distribution agreement " incfudes any agreement in Ermit, restrict er swrhhoie' the czuipmf er suppiy ef any geeds er elfeeate any area er marker for the dispose! or safe of the gases. ""

6.69 The Ccrmmissien observes tfsﬁgraegggr paint 2.3; M the agreement, FEES has been eppcximed as nan &:£ \ ' 2'. Further, Point 2;~2':3f the E §,egx;§i3§'§3 eggs"-:;i::*sment brings out as L,mde;r;e:: "

\;\ 9}' §~.'~ < ' ._\_'§.~'\_ ,.

14' i The eermsaey reserves the raga \ .:«-.-a_.,3-- m;:.=c:¢3_:2Q§n.$--9$h&:r._£¥ea§ers.::x::=:{1*isi;'££mi?ar§:far the __2::mm::%>:'ian,,. 5.a$e.;<3.:2s;:i.;

sappiy of the products in the terrimry Enciuding wadasgis fcieniicai :0 the praducts, as it sees fig' {faring and after tine' term of rhfs Agreement..."

6.?Q Therefore, Stryéqer is free to appoint any anther firm :3? entity 3;: its deaéer' The Ccrmmission abserves 'ﬁat paint 3{1}(g) gtﬁpuiates that wmwut gzzermission of Strgiker, FES wmﬁd mt seii pmducts cf any ether mmpany. Hswever, records. reveai that there are ather cempeting precincts in the market which are avaéiabia to the ether simiiarﬁy piaced entities Hike FEE' The pmducts af tempering firms §ike Kari Star: are aim avaiﬁabie in the market Dffeirirsg competition ':63 the gsmciucts i:1»fS'¥:ry3<ez'..

€331 Further, other firms on requests are abée ':0 get productg aw? Stryker iike MDI3 in the instant case which has qzmted the pmducts of Stryker aibeit through PES. The recerds sf Envestégation do not reveaﬁ that any mmgaetitor :3? Stryker has raiased any cancern arising out cf such an agreememt between PES and Stryker on the issue. {M3 has aésts net brought fsrth and anaiyseti the issues 01' ccsmgsetitian arising {nut of such an arrangement in Eight cf the pmvisﬁmns ax' secticm 19(3) av? the Act read with sectiarz 304} 0'? the Act in mder to estabiish whether such agreement between PES and Stryker is causing cw is iikeiy ta cause AAEC in inﬂia.

6.32 in View of aforesaid, the Csmnxéssien imids that facts can retard :39 not rovicie evidenae to estah£«'rA2?§'-§'<f§" éézz? p 4'_.;

fan cf pmvisicms «sf sectéan 3(4) in the matter.

'3: , 23.1 Th'e jﬁlamnaissian has fszsunci the' three grsarties named $51 the information in cormavention of '£:he~ Vprovisians cf section 3{?»}{c§} 0f the Act. The C+:?mmissi0n feeis that bid--rEg;ging is as majer drain cm the excheqmar :'aiTs§ng the cost ca'? tpmcusrement for the gmzemment. m any econcmy' this kinﬁ sf behavimn is unaccamabie. The:'ei'{sr§s, the Cammisgion deems it fit to impose penames on 3%! the three firms under sectian 2? (E3) 0'? the Act at the rats: of 5% in the fc3¥§0w§ng manner;

ﬂppasiie Tuésiaver T T Tuwmvei '§"esrm3vea' Average 5 '.33 <5? Aug. Parties {saws} in year {gases} in year {sales} in year Turnever of tumzwer Enziezi an Ended cm Ended on Last 3 years gin Rs} 31.03.2509 (in 31.€)3..'££{31£}{§n 3i.{}3.2011§in {in 25.;

35.} as.) V 85.} PE5 1€}9,9£}5,1-'$i}.6{} 1?2,?€3-£3,9ﬁQ.i}i} {Sim Sxssagziied 135,335,056 5,S»${),252 IMPS A3,E§?t2-,€)?E.3€} ?0,E§52,'?52.&'$§) 3.ﬁ?,-'%1!3,.4?££.5S §S,53'3,??1 !$,?S48,183 MD!) K 125,-$3'3',S?3.14 it-2$,ﬁ3.8,S'}'5.'?? 5§5€},3.3§1,1€§3.-$5 - 3E9,,5,1S_,55& 18,4?£}',??S ?.2 in case Qf PES since tumaver of cmiy two years was made avaiiabie, penalty has been imigosed a'{t§*;e rate sf 5% on average of turnover cef the twa years. in case of ether twee firms, penaity has been imgmaed at rate :3'?

5% an their average 'tumover of three years.

"I813 The three firms on whom penaities. have been impesed' as war para '$3.1 must depasét the amount ga?' 3' 8 \ atxrder. g "

ies as; per 'I x''' G aw is srder '£323 afi the mar':

:'<.~"-~ §' . \ xx.

s:::::smmLmEcate th Ne::'£'e~2Vrp:"§<':ﬁé':s:1aziikﬁcardﬁngiy.

§éé1Q§i C:5n*{m

9. Secretary is directed to %regu§a%t$<::m5.

Legal Document View

Unlock Advanced Research with PRISMAI

Competition Commission of India

A Foundation For Common Cause & People ... vs Pes Installations Pvt. Ltd. & Ors on 16 April, 2012