Procurement terms and tender conditions are not abusive or anti-competitive without material showing collusion or dominance.

A procurer may set procurement requirements and tender terms according to its needs, and such terms do not become anti-competitive or abusive merely because they are restrictive or disputed. The CCI found no material showing collusion, bid rigging, or any other prohibited agreement, so no prima facie contravention of the prohibition on anti-competitive agreements was made out. It also held that selection or non-selection of an agency, or a restrictive request for proposal, does not by itself establish abuse of dominance unless the statutory ingredients are otherwise shown. In the absence of supporting material, the matter was closed at the threshold.

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Issues: (i) Whether the allegations disclosed any prima facie case of anti-competitive agreement or bid rigging under Section 3 of the Competition Act, 2002. (ii) Whether the appointment of the project management consultant and the terms of the request for proposal disclosed any prima facie abuse of dominant position under Section 4 of the Competition Act, 2002.

Issue (i): Whether the allegations disclosed any prima facie case of anti-competitive agreement or bid rigging under Section 3 of the Competition Act, 2002.

Analysis: The allegations of tacit agreement were not supported by evidence or material indicating collusion, bid rigging, or any other prohibited anti-competitive arrangement. Mere assertions about the tender process, without supporting material, were found insufficient to justify further inquiry under the Act.

Conclusion: No prima facie contravention of Section 3 of the Competition Act, 2002 was made out.

Issue (ii): Whether the appointment of the project management consultant and the terms of the request for proposal disclosed any prima facie abuse of dominant position under Section 4 of the Competition Act, 2002.

Analysis: The impugned conduct was held to fall within the procurer's freedom to determine procurement requirements and tender terms. Selection or non-selection of an agency, or the issuance of a restrictive or defective request for proposal, could not by itself constitute abuse of dominance unless the statutory ingredients were otherwise established. In the absence of supporting material, the Commission declined to proceed with relevant market delineation and dominance assessment.

Conclusion: No prima facie contravention of Section 4 of the Competition Act, 2002 was made out.

Final Conclusion: The information was closed at the threshold and the interim prayer also failed, as no case for interference under the competition law was established.

Ratio Decidendi: A procurer is entitled to set procurement terms according to its requirements, and such terms do not become anti-competitive or abusive merely because they are restrictive or disputable in the absence of material showing a statutory contravention.

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