Indian Kanoon - Search engine for Indian Law

7. It was averred that the price quoted by OP-2 was almost double the Maximum Retail Price (MRP) of the same machine marketed and distributed by OP-1 in the open market. This clearly shows that OP-5 awarded the contract at a very high price due to extraneous consideration. It was also submitted that OP-2 to OP-4 have submitted their respective bids through a single IP address, i.e. 116.75.133.164 and the fee for tender and EMD was paid through a common bank, i.e., the State Bank of India.

OP-2 had quoted per unit price of Rs. 11,900/- (Rs. 12,621/- with taxes); OP-3 had quoted per unit price of Rs. 11,931/- (Rs. 12,649/- with taxes) and OP-4 had quoted per unit price of Rs. 11,921/- (Rs. 12,638/- with taxes). The DG observed that the difference in prices quoted by OP-2 and OP-3 is Rs. 28/-, and that of OP-3 and OP-4 is Rs. 11/- and OP-2 and OP-4 is Rs. 17/- only.

11.3. OP-2 used its own IP address for filling up the tenders of all three bidders, i.e. for itself and OP-3 and OP-4 which was not disputed rather admitted by OP-2. As per the DG, this goes to establish that the Impugned Tender was subjected to bid rigging by OP-2, coupled with the consent and connivance of OP-3 and OP-4 in the process to rig the bids.

Single IP Address

53. The DG in its investigation has also revealed that all the three bids of OP-2 to OP-4 were submitted from a single IP address, i.e. 116.75.133.164. The evidence collected by the DG, in the form of confirmation from the Internet Service Providers, evidences the fact that the said IP address belong to OP- 2 i.e. Klassy Computers. OP-2, in its deposition accepted the fact that his IP address was used for filling the Impugned Tender on behalf of all the three OPs.

56. It has also been submitted by OP-2 that 'technical envelope' of the bid was completed by its employees and the 'commercial envelop' was filled by the concerned OP itself. In the present matter, the commercial envelop was filled by OP-3 and OP-4 on 26.11.2015 and by OP-5 on 27.11.2015 by using the same cybercafé and thus same IP address was used to upload all the bids. In this regard, OP-2 has also relied on the judgement of the Hon'ble High Court of Bombay in the case of S K Translines Private Limited v. The Maharashtra State, WP No. 3393 of 2016 wherein it was held that "....Merely a singular instance of a party filling in the tender from the same I.P. address as the other tenders would be too slender a consideration to come to a conclusion of the said person forming a cartel....'. OP-2 has also placed reliance on the judgement of Hon'ble Competition Appellate Tribunal in the case of Delhi Development Authority v. Shree Cement Limited, 2010 CTJ 17 (COMPAT) (MRTP) and the judgement of Hon'ble Supreme Court of India in the case of Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499. The Commission is of the view that the said reliance of OP-2 to buttress its argument is misconceived as all the evidence unearthed during the investigation have to be assessed holistically and not in isolation to each other. Therefore, all the evidence collected by the DG, viz. usage of single IP address, price parallelism, submission of Tender Charges by OP-2, CDR analysis, close relationship between OPs, etc. have to be seen in conjunction with each other to determine existence of an agreement amongst OP-2 to OP-4, as detailed hereinabove and to be further discussed hereinafter.