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24. NB0l (Al) Add-on - Notebook - General (External 65 DVD)

10. As per the Impugned Tender, eligible bidders were either OEMs or SIs of OEMs. The terms and conditions of the Impugned Tender provide for the definition of the OEM, which means manufacturers of Group I to Group VIII items only. These groups are as follows:

            Group I                     PCs, Note Books and Thin Clients
            Group II                          Servers and Workstations
            Group III                                   Printers
            Group IV                             Network Equipment
            Group V                                      UPS
            Group VI                         Storage Devices (NAS, SAN)
           Group VII                                    Scanners
           Group VIII                             Plotters and MFS

19.13. It was submitted that the Informant pressed upon BHEL to issue a separate tender to procure its products independently.

20. The Commission has carefully perused the information and heard the submissions of the Informant and BHEL.

21. With respect to the primary allegation of the Informant that the participation of only 02 bidders in the Impugned Tender, having connection with HP, could only happen incase there was meeting of minds between OPs, is not prima facie convincing, in light of the submissions made by BHEL. The Commission notes that BHEL categorically stated that the Impugned Tender was an open tender and there was no embargo on any SI or OEM to participate and there were pre-bid discussions which were attended by the SIs, OEMs and other representatives from the industry. It was further stated that the Impugned Tender was not only for Group A items - Office Equipments etc but also consisted of Group B items. It was averred that in Group A items, 02 SIs (OPs) submitted the bids and for Group B items, 04 bids were submitted. Group A items were meant for installation at more than 100 locations of BHEL whereas Group B items related to Data Centre equipments, which were to be installed at few locations. Moreover, requirement for Group A items, as per the Impugned Tender, comprised of providing maintenance and other services for five-year lease period including seamless integration between various components etc. Therefore, it was submitted that number of participation of bidders for Group A items and Group B items ought not raise any suspicion as the modalities for providing services were different and thus, large submission of bids for Group A items in such a scenario would have been far-fetched. The Commission finds substance in the submissions made by BHEL.

22. The Commission notes that the fact that subsequently only 02 bids were submitted for Group A items, by itself, is not adequate to raise any suspicion of cartelisation. The Commission observes that there could be factors like stringent operative requirements, as explained by BHEL, which could have resulted in low participation. It is also noted that 04 bids were submitted for Group B items, which were relatively less rigorous as submitted by BHEL. This has to be appreciated in light of the fact that there is no allegation or evidence to suggest that the OPs knew that other SIs/OEMs would not participate nor there was any entry barrier for other SIs/OEMs to participate. Thus, in such facts and circumstances, the Commission views that a low participation may not necessarily be indicative of or be an outcome of any concerted action.

25. Further, the Commission is of the view that the allegation of the Informant that OP-1 quoted majority of items of HP, also does not appear to suggest any meeting of minds and appears to be a unilateral action on its part. It is evident that OP-1 and OP-2 are two different entities. OP-1 as a separate SI was free to select OEM for each group items and so was OP-2. Infact, the Informant has itself indicated in the Information that OP-2 quoted the items of other OEMs such as Canon Japan, KIP Japan etc. This, by itself, shows that they were applying their minds independently and does not show any meeting of minds. As also noted above, BHEL submitted that Group A items involved more functional and operative requirements at more than 100 locations for a period of 05 years, therefore, SI in its discretion, must have chosen to quote HP so that it could honour its commitments during the lease period. It was further submitted by BHEL that OP-1 quoted items of other OEMs like Panasonic etc. for the other Group A items. Therefore, the Commission agrees with the submissions of BHEL and it appears to be a case of bidders' choice of quoting products, answering to the requirements as per the concerned Tender's terms and conditions.