Firms and JVs cleared of tender collusion
The Competition Tribunal has dismissed a case of collusive tendering through price fixing involving a 2015 Eskom tender worth R240m against four firms and three joint ventures (JVs).
TimesLIVE reports that the Tribunal dismissed the complaint after finding that the firms were not competitors.
The tender was for the supply, transportation, delivery, installation and dismantling of scaffolding and thermal insulation at Eskom’s 15 coal-fired power stations.
Respondents to the complaint, initially launched by Eskom, were SGB-Cape and the three firms with which SGB-Cape partnered: Tedoc Industries (Pty) Ltd, Superfecta Trading 159 CC and Mtsweni Corrosion Control (Pty) Ltd.
Other respondents are the three JVs between them, namely Tedoc SGB-Cape JV, Superfecta SGB-Cape JV and Mtsweni SGB-Cape JV.
The Tribunal found that the facts of the case did not support the Competition Commission’s argument that, by submitting four separate tenders, SGB-Cape and the three JVs were in a ‘horizontal relationship’ and thus competitors.
The Competition Act prohibits firms that are in a horizontal relationship (competitors) from entering into or participating in agreements or concerted practices which involve conduct such as price fixing, dividing markets or collusive tendering.
The bids were submitted by SGB-Cape, as the controlling mind, on behalf of all the JVs.
The Tribunal said if SGB-Cape was the single controlling mind, it followed that it could not compete with itself.
‘Furthermore, because the JVs would not exist in the absence of this tender, they could not compete with each other or with SGB-Cape, absent the tender,’ the Tribunal said in a statement.
As a result, the Tribunal found there had been no contravention of the law.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.