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74) In these appeals, the Court is concerned with the alleged agreement entered into between the appellants falling in clause (d) of sub-section (3) of Section 3, which talks of bid rigging or collusive bidding. Therefore, it would be necessary to understand the meaning of the expression ‘bid rigging’ and ‘collusive bidding’. Explanation to Section 3, which is reproduced, assigns meaning to ‘bid rigging’ and states :
“S. 3:
Explanation.—For the purposes of this sub-section, "bid rigging" means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding.”
“38. Mr Neeraj Kishan Kaul, learned Additional Solicitor General, refuted the aforesaid submission with vehemence by urging that bid rigging and collusive bidding are not mutually exclusive and these are overlapping concepts. Illustratively, he referred to the findings of CCI, as approved by COMPAT, in the instant case itself to the effect that the appellants herein had “manipulated the process of bidding” on the ground that bids were submitted on 8-5-2009 collusively, which was only the beginning of the anti-competitive agreement between the parties and this continued through the opening of the price bids on 1-6-2009 and thereafter negotiations on 17-6-2009 when all the parties reduced their bids by same figure of Rs 2 to bring their bid down to Rs 386 per kg from Rs 388 per kg. From this example, he submitted that on 8-5-2009 there was a collusive bidding but with concerted negotiations on 17-6-2009, in the continued process, it was rigging of the bid that was practiced by the appellants. We are inclined to agree with this pellucid submission of the learned Additional Solicitor General.

Since most (but not all) contracts open to bidding involve Governments, it is they who are most often the target of bid rigging. Bid rigging is one of the most widely prosecuted forms of collusion.” Collusive bidding (tendering) — See “bid rigging”. (This shows collusive bidding and bid rigging are treated as one and the same.)

(c) OECD Guidelines for fighting bid rigging “Bid rigging (or collusive tendering) occurs when businesses, that would otherwise be expected to compete, secretly conspire to raise prices or lower the quality of goods or services for purchasers who wish to acquire products or services through a bidding process.”

(d) of sub-section (3) of Section 3 uses both the expressions “bid rigging” and “collusive bidding”, but the Explanation thereto refers to “bid rigging” only. However, it cannot be said that the intention was to exclude “collusive bidding”. Even if the Explanation does contain the expression “collusive bidding” specifically, while interpreting clause

(d), it can be inferred that “collusive bidding” relates to the process of bidding as well. Keeping in mind the principle of purposive interpretation, we are inclined to give this meaning to “collusive bidding”. It is more so when the expressions “bid rigging” and “collusive bidding” would be overlapping, under certain circumstances which was conceded by the learned counsel for the appellants as well.