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2024 (8) TMI 1715
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....he Act. The appeal has been filed under Section 53(b) of the Act challenging the impugned order of the Commission. Brief facts of the case 2. The Commission received a general complaint dated 07.08.2018 alleging bid-rigging in tenders invited by the Department of Agriculture, Government of Uttar Pradesh for soil sample testing. The complaint pertains to alleged bid-rigging in respect of two e-tenders namely, Tender 2018_AGRUP_210583_1 (Moradabad) dated 31.05.2018 ("Tender No. 1") and Tender 2018_AGRUP_212591_1 (Bareilly) dated 18.06.2018 ('Tender No. 2"), invited for the soil sample testing by the Department of Agriculture, Government of Uttar Pradesh. 3. It was stated in the complaint that the following parties participated in the aforesaid two tenders of soil testing in Uttar Pradesh: (i) M/s Yash Solutions (ii) M/s Satish Kumar Agarwal (iii) M/s Siddhi Vinayak and Sons (iv) M/s Saraswati Sales Corporation (v) M/s Lab Traders (vi) Edward Food Research and Analysis Centre Limited (vii) Atharva Laboratories Pvt. Ltd. (viii) M/s Newgen Computers (ix) Austere System Pvt. Ltd. 4. It was allege....
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....on to those mentioned in the information in the information, the DG would be at a liberty to investigate the same. The DG was also directed to investigate the role of the persons/officers who were in charge of and responsible for the conduct of the businesses of the parties at the time the alleged contravention was committed, as well as persons/officers with whose consent or connivance the alleged contravention was committed, in terms of the provisions of section 48 of the Act. The DG, pursuant to the directions of the Commission, investigated the matter, and after seeking due extensions of time, submitted the investigation Report dated 08.04.2021. 7. The relevant findings of the investigation report relating to the appellant's role are the following: (i) Investigation covered 9 tenders namely, tenders of (a) 2017 and 2018 for Moradabad division, (b) 2017 and 2018 for Bareilly division, (c) 2017 for Jhansi division, (d) 2018 for Saharanpur division, (e) 2017 and 2018 for Meerut division, and (f) 2018 for Aligarh division. (ii) As per the records submitted by the Department of Agriculture, Government of Uttar Pradesh, during the year 2017-18, the contract for so....
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....h entities had bid for 2017 and 2018 soil testing tenders despite having no prior experience of soil testing. Further, the said entities did not have any soil testing machine. M/s Satish Kumar and M/s Saraswati Sales, in collusion with M/s Yash Solutions, used fake documents provided by M/s Yash Solutions to become eligible and submit cover bids to support the bid of M/s Yash Solutions. Both the entities were blacklisted by the Department of Agriculture, Government of Uttar Pradesh for two years in relation to the lack of authenticity of the documents submitted along with bids for soil testing tenders. However, the said decision was not appealed by the proprietor of the said entities. (ix) With respect to M/s Saraswati Sales, the investigation revealed that M/s Saraswati Sales, a proprietorship concern, was engaged in the business of electrical contract work for various agencies and had submitted bids in the soil testing tenders in the year 2018 for the Bareilly, Moradabad and Aligarh divisions, even though the proprietorship concern neither had prior soil testing experience nor any infrastructure for conducting soil testing. The investigation also brought out that M/s Sar....
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.... (b) Mr. Satish Kumar Agarwal, Sole Proprietor, M/s Satish Kumar and de facto owner of M/s Siddhi Vinayak; (c) Mr. Praveen Kumar Agarwal, Managing Director, Yash Solutions; (d) Mr. Nitish Agarwal, Director, Chaitanya Business Outsourcing; (e) Mr. Ankur Kumar, Director, Delicacy Continental; (f) Mr. Jai Kumar Gupta, Director, Fimo Info Solutions; (g) Mr. Suresh Kumar Gupta, Proprietor, M/s Toyfort; and (h) Mr. Rahul Gajanan Teni, Director, Austere Systems 8. The commission considered the investigation report of the DG in its meeting on 08.06.2021 and noted the findings that M/s Yash Solutions, M/s Satish Kumar, M/s Siddhi Vinayak, M/s Saraswati Sales and Austere System along with other entities namely, M/s Delicacy Continental, Fimo Infosolutions, M/s Toyfort and M/s Chaitanya Business Outsourcing indulged in cartelisation and bid rigging in the soil testing tenders floated by Government of U.P. 9. Thereafter, commission decided to add M/s Delicacy Continental, Fimo Info solutions, M/s Toyfort and M/s Chaitanya Business Outsourcing as parties to the proceedings and they were arrayed as Opposite Party (OP) Nos. 6, 7, 8....
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....cing, which is its sister concern, had participated, and filing of bids by both these companies, though related to each other, did not amount to bid-rigging as there was no condition in the tender that related parties could not file bids in their respective names. It further avers that its sister concern, Chaitanya Business Outsourcing did not participate in any of the tenders after the 2017 Bareilly tender. In so far as the 2017 Moradabad tenders are concerned, it is submitted that, apart from M/s Yash Solutions, M/s Satish Kumar and M/s Siddhi Vinayak and certain other bidders had participated, however, the said tender was awarded to it for being the L-1 bidder and that there was no reason for M/s Yash Solutions to collude with other bidders, it being the bidder offering the lowest quote. 13. In relation to 2018 Moradabad, Bareilly and Aligarh tenders, M/s Yash Solutions had submitted that those tenders were awarded to it for being the L-1 bidder and that, in relation to the Bareilly and Moradabad tenders, bidders other than the present Opposite Parties had also participated 14. It has also been submitted that the invoices of M/s Yash Solutions which were submitted by it fo....
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....ate in any other tenders floated by the Department of Agriculture, UP. 20. It had averred that no case of bid rigging can remotely be made out against it in as much as it has not indulged in any incriminating conducts like using the same invoices, submission of tender from same IP address, submission of tender from same Login ID, etc. 21. On the issue of penalty, it has been submitted that it never participated in any of the soil testing lenders, therefore, there is neither any profit nor any revenue from any alleged bid rigging. It has submitted that, given the fact that it did not earn any profit or revenue for the relevant period/ the relevant market, no penalty be imposed on it. Moreover, it is also registered as an MSME and, therefore, a lenient view may be taken while imposing penalty, if any. 22. The commission after careful perusal of the investigation report, the objections/suggestions thereto received from OPs and the submissions made by the OPs during the hearing on 16.12.2021 framed two issues, these are as follows: "Issue 1: Whether the Opposite Parties have directly or indirectly rigged/ manipulated the tenders of soil testing issued by the Departmen....
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....Ms. Komal Agarwal w/o Mr. Praveen Kumar Agarwal, MD of M/s Yash Solutions; and Ms. Vasu Agarwal w/o Nitish Agarwal, CEO of M/s Yash solutions. This company also did not have any soil testing work experience prior to the issuance of soil testing tenders in 2017. (iii) M/s Yash Solutions had submitted its bids in the soil testing tenders of the Department of Agriculture, Government of Uttar Pradesh for the Moradabad and Bareilly divisions in the year 2017 and Bareilly, Moradabad, Jhansi, Saharanpur, Meerut and Aligarh divisions in the year 2018. The financial bids for the Jhansi division in 2018 were not opened, and the tenders were cancelled. M/s Yash Solutions had won contracts in the tenders of 2017 for Bareilly and Moradabad divisions and tenders of 2018 for Bareilly, Moradabad and Aligarh divisions. (iv) In his statement before the DG, Mr. Praveen Kumar Agarwal submitted that there were very few companies operating in the soil testing business in 2017, and thus, he decided to submit separate bids on behalf of both his group companies, namely, M/s Yash Solutions and Chaitanya Business Outsourcing in the 2017 tender for Bareilly Division with a view to show compe....
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....nce of analysing 50,000 soil samples. The eligibility conditions in the said tenders also required the bidders to conduct tests on an ICP-OES soil testing machine. (vii) The Commission noted that the investigation revealed that M/s Satish Kumar and M/s Siddhi Vinayak submitted experience certificates of soil testing work issued by rival entity in the tender, the same being M/s Yash Solutions, despite admitting before the DG that both his concerns had no experience of soil testing work nor did they have any soil testing lab or any soil testing machine. The Commission notes that Mr. Satish Kumar Agarwal could not come forth with any justification as to why such false certificates were issued by M/s Yash Solutions to the above concerns. The Commission also notes that the experience certificates issued by M/s Yash Solutions to M/s Satish Kumar and M/s Siddhi Vinayak bore the same date and were issued despite the fact that those entities never had any soil testing experience or experience of working on ICP-OES machine, and these were fake. (viii) The Commission also noted that Mr. Praveen Kumar Agarwal in his statement before the DG admitted that fake work orders and e....
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....en questioned as to who provided the said invoices and for what purpose. (xi) Further, the Commission also noted that M/s Saraswati Sales, which had no experience, infrastructure such as soil testing machine and manpower for conducting soil testing work, had participated in the soil testing tenders of 2018 for Bareilly, Moradabad and Aligarh divisions and had also submitted fake invoices for the purchase of ICP-OES soil testing machine in the soil testing tenders of 2018. The Commission also took notice of the fact that Mr. Naresh Kumar Sharma of M/s Saraswati Sales, in his statement before the DG, admitted that the said invoices were arranged by Mr. Praveen Kumar Agarwal of M/s Yash Solutions, and that Mr. Praveen Kumar Agarwal in his statement agreed with the aforesaid statement of Mr. Naresh Kumar Sharma. (xii) The Commission further noted that Mr. Naresh Kumar Sharma, on being questioned as to why he bid for the tenders, stated that he submitted the bids on the request of Mr. Praveen Kumar Agarwal of M/s Yash Solutions to submit a cover bid or supporting bid so that M/s Yash Solution's bid could not be rejected due to insufficient number of bids. The Commi....
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....ii) The Commission further noted that Mr. Satish Kumar Agarwal, in his statement, had admitted that he had submitted fake documents and bid separately for both his concern, M/s Satish Kumar and M/s Siddhi Vinayak, in the 2017 soil testing tenders for Moradabad and 2018 soil testing tenders for Aligarh, Moradabad and Bareilly divisions, just to show that there was enough competition and to avoid cancellation of tenders due to lack of participation. The Commission further notes that the name of M/s Yash Solutions appeared in the affidavits submitted by M/s Satish Kumar and M/s Siddhi Vinayak. Further, the phone number of the authorised signatory of M/s Yash Solutions, i.e. Mr. Rachit Agarwal, appeared in the character certificate issued to Ms. Sangeeta Agarwal of M/s Siddhi Vinayak. The Commission also notes that Mr. Satish Kumar Agarwal persistently submitted evasive replies "I do not know" or "I do not remember" and submitted no explanation for the alleged linkages. It is also noted that Mr. Satish Kumar Agarwal initially denied knowing Mr. Praveen Kumar Agarwal of M/s Yash Solutions, however, when confronted with the CDR of his mobile number, he admitted having regular interaction....
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....k. (xix) The Commission also noted that Mr. Satish Kumar Agarwal submitted evasive replies of "I do not know" when he was questioned about the authorised signatories namely, Mr. Suraj Singh and Mr. Vivek Saxena, employees of M/s Yash Solutions, who had submitted bids in respect of his concerns M/s Satish Kumar and M/s Siddhi Vinayak as well as of rival bidders, namely, M/s Saraswati Sales, in the 2017 and 2018 soil testing tenders. Further, Mr. Satish Kumar Agarwal admitted to have known Mr. Nitish Kumar Agarwal (CEO of M/s Yash Solutions and Director of Chaitanya Business Outsourcing) and Mr. Rachit Agarwal (General Manager of M/s Yash Solutions). In his statement before the DG, Mr. Satish Kumar Agrawal admitted to taking Mr. Rachit Agarwal's assistance in completing and submitting the tender documents of both his concerns. (xx) The Commission further noted that Mr. Naresh Kumar Sharma, of M/s Saraswati Sales, initially feigned ignorance with respect to the submission of bids by his proprietorship concern in the soil testing tenders in question. However, when he was confronted with the authorisation letter issued by him in favour of Mr. Vivek Saxena, an emplo....
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....at the evidence on record coupled with the statements of the individuals of the above-mentioned Opposite Parties point to their complicity in manipulating the tenders issued by the Department of Agriculture, Government of Uttar Pradesh. Further, even acts of forgery were resorted to in such processes, which speaks about the conduct of such Opposite Parties. Further, M/s Yash Solutions, M/s Satish Kumar and M/s Siddhi Vinayak were blacklisted by the procurer. The Commission does not find any merit in the submissions made by the said Opposite Parties in their objections/ written submissions as well as the arguments advanced during the oral hearing and in subsequent submissions. The Commission thus concluded that M/s Yash Solutions, M/s Satish Kumar, M/s Siddhi Vinayak, M/s Saraswati Sales and Chaitanya Business Outsourcing have contravened the provisions of Section 3(3)(d) read with Section 3(1) of the Act. 25. Set III Austere Systems and M/s Yash Solutions i) The Commission noted that Austere Systems had submitted bid in 2018 Bareilly tender, which was technically rejected due to various reasons, viz. non- submission of three years balance sheet; non-submission of last t....
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....ers. In this regard, the Commission found no merit in the arguments advanced by the said Opposite Party and agreed with the DG, that there could be no explanation for the submission of high price bids by M/s Yash Solutions except that they were cover bids made in support of bid of Austere Systems in the said divisions and to enable Austere Systems to bag the tenders. vii) The Commission observed that only three bidders, namely, Austere Systems, M/s Yash Solutions and Delicacy Continental, had submitted bids in the 2018 Meerut and Saharanpur tenders. From the above, the Commission notes that there was an arrangement/agreement between the said three entities to manipulate the process of bidding in the soil testing tenders of 2018. viii) The Commission agreed with the findings of DG that Austere Systems, under an arrangement understanding with rival company M/s Yash Solutions, had geographically allocated the soil testing tenders issued by the Department of Agriculture, Government of Uttar Pradesh, in 2017 and 2018 by not bidding in each other's allocated regions and by submitting supporting bids in favour of each other. Issue 2: If the Opposite Parties are fo....
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.... 28. Mr. Nitish Agarwal (Chaitanya Business Outsourcing) The Commission noted that Mr. Nitish Agarwal, one of the Directors of Chaitanya Business Outsourcing and CEO of M/s Yash Solutions, was responsible for the entire affairs of Chaitanya, and all decisions were taken by him. Chaitanya Business Outsourcing had participated in the soil testing tenders for Bareilly division in 2017, with Mr. Nitish Agarwal acting on behalf of such company. The Commission notes that, in his statement before the DG, Mr. Nitish Agarwal stated that, as there were very few companies present in the business of soil testing, it had submitted its bid along with their group company Yash Solutions, with no intention of submitting any competitive bids, but only cover bids in favour of Yash Solutions in the 2017 Bareilly tenders so that the tenders for soil testing do not get cancelled due to lack of bids. Moreover, Mr. Nitish Agarwal had admitted that his company had submitted a false undertaking regarding having a soil testing lab to the Department of Agriculture, Government of Uttar Pradesh. The Commission finds that Mr. Nitish Agarwal played an active role in getting Chaitanya Business Outsourcing to ma....
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....Sales Corporation, M/s Austere System Pvt. Ltd., Delicacy Continental Pvt. Ltd, Fimo Infosolutions Private Limited, M/s Toyfort and Chaitanya Business Outsourcing Pvt. Ltd. to have contravened the provisions of Section 3(1) of the Act read with Section 3(3)(c) and 3(3)(d) thereof, as detailed in this order. 32. Further, the Commission, in terms of Section 27 (a) of the Act, directed the Opposite Parties and their respective proprietors and directors who have been held liable in terms of the provisions of Section 48 of the Act to cease and desist from indulging in practices which have been found in the present order to be in contravention of the provisions of Section 3(3)(c) and 3(3)(d) read with Section 3(1) of the Act, as detailed earlier. 33. The Commission found the present case fit for imposition of penalty, under the provisions contained in Section 27(b) of the Act. Under the aforesaid section the Commission may impose such penalty upon the contravening parties as it may deem fit, which shall be not more than ten percent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreement....
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....ile ground for regulatory arbitrage. For example, if owing to the understanding between the bidders. If some or few bidders have refrained from participating in the particular tender under investigation, the turnover of the said parties from the said tender would obviously be mil, resulting in nil penalty. To allow such parties to walk free without incoring any monetary penalty for their anti-competitive conduct simply because they did not have any turnover from the concerned tender, would not only smultify the Parliamentary intent in providing deterrence through penalties against such behaviour hut would also run contrary to the underlying spirit of the judgment of the Hon'ble Supreme Court of India in Excel Crop Care Judgment. Taking such a pedantic interpretation would provide a virtual free run to the infringing parties and an effective immunity against any antitrust action for their anti-competitive behaviour. This cannot be the purport or intent either of the Parliament or the Hon'ble Supreme Court of India in laying down the parameters and perimeter for Imposition of monetary penalty upon the contravening parties. Therefore, such contentions by the OPs need to be rej....
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....ress was used only in relation to submission of two tenders used by the appellant and M/s Siddhi Vinayak & Sons and not by any other bidder. The appellant further stated that it was the associate/ex-employees of the appellant, who had submitted the bids for the other bidder, without consent and knowledge of the appellant. Hence, during the course of their employment they must have use the internet facility of appellant and submitted the bid for other bidder, which could not have been within the knowledge of the appellant. In this regard, the petition relies upon the Judgment of Hon'ble Bombay High Court in 'S K Translines Pvt. Ltd. Vs. The Maharashtra State', reported in ANU/MH/2073/2016. The appellant has also placed reliance on the Judgment of Hon'ble Supreme Court in 'Union of India Vs. Hindustan Development Corporation', reported in (1993) 3 SCC 499. 42. The submissions of the appellant is that the DG in his report has mentioned that same login id was used by competitors for filing the bids but in realty the appellant's login id was [email protected]. Two different emails were used by the parties. It is further stated that there is no material on record to show that the ema....
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....d not participate in any subsequent tender. Yet the respondent concluded that M/s Chaitanya Business Outsourcing is part of the bid rigging merely because the Directors or shareholders of the appellant and M/s Chaitanya Business Outsourcing are common or related to each other. It has been further submitted that there was no embargo on related party bids in the terms and conditions for tender and none of the documents submitted by M/s Chaitanya Business Outsourcing were found to be false. The Appellant 1 & 2 in any case are separately legal entities in the eye of law. The submission of the respondent is that the commission blindly followed the findings of the DG report without application of mind and wrongly held the appellant to have engaged in bid rigging and cartelization. 47. The Appellant 1 further submits that there is no reason for submitting cover bids by the appellant and other bidders in both 2017 and 2018 tenders as there was no requirement of minimum number of quotations of bids in the aforesaid tender. It further states that there was no appreciable adverse effect on competition by the so called acts of collusion and acting in consent by the appellant with other bidd....
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....CI shall take into consideration the factors mentioned in Section 19 of the Act and to see as to whether all or any of these factors are established. If the evidence collected by CCI leads to one or more or all factors mentioned in Section 19(3), it would again be treated as an agreement which may cause or is likely to cause an appreciable adverse effect on competition, thereby compelling CCI to take further remedial action in this behalf as provided under the Act. That, according to us, is the broad scheme when Sections 3 and 19 are to be read in conjunction." 49. The appellant submitted that the commission heavily relied on the alleged admissions before the commission by different party who was part of the investigation and the same was obtained under duress and coercion. No opportunity for cross examination was given to the witnesses by the DG. 50. The appellant submits that the commission has wrongly arrived at the finding that the Austere Systems and the appellant had orchestrated the bid rigging process by allegedly geographically allocating the areas amongst themselves for the 2017 and 2018 soil testing tenders on the premise that the said entities had submitted high p....
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....riteria of total turnover of a company by including within its sweep the other products manufactured by the company, which were in no way connected with anti-competitive activity, it would bring about shocking results not comprehended in a country governed by Rule of Law. Cases at hand itself amply demonstrate that the CCP's contention, if accepted, would bring about anomalous results. In the case of M/s Excel Crop Care Ltd., average of three years turnover in respect of APT, in respect whereof anti-competitive agreement was entered into by the appellants, was only Rs 32 41 crores. However, as against this, CCI imposed penalty of Rs 63 90 crores by adopting the criteria of total turnover of the said company with the inclusion of turnover of the other products as well Likewise, UPL was imposed penalty of Rs 252 44 crores by CCI as against average of the three years' turnover of APT of Rs 77.14 crores. Thus, even when the matter is looked into from this angle, we arrive at a conclusion that it is the relevant turnover, Le turnover of the particular product which is to be taken into consideration and not total turnover of the violator." 53. The appellant has further submitt....
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....ercise of the discretion does not remain subjective, but remain objective because of the reasons. 27. In the earlier paragraphs, we have already noted that the CCI has not given any reasons nor has it discussed as to why it was pegging the penalty at 5%. 28. While inflicting the penalty the CCI should have considered the aggravating as well as the mitigating circumstances. This case, being held of cartelization and bid rigging is undoubtedly a very serious circumstance against the appellants. In the competition jurisdiction, bid rigging and cartelization have been treated to be abhorrent to the competition and have been looked down upon internationally. The trend in the countries where the competition jurisdiction has been in prevalence for substantial number of years, the judicial thought favours stiff penalties which can be deterrent. However, at the same time, we would have to consider the peculiarity of this jurisdiction in India. It is only for last three years that the competition jurisprudence has been introduced through the Competition Act, 2002. The nascent stage of competition jurisdiction would be one of the factors to be taken into consideration while ....
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....ommission to consider the fact that the appellant being a MSME may not be able to recover in case any penalty that is imposed on it and had relied on the following precedents. The appellant relies on the orders passed by commission in the following matters:- (i) Food Corporation of India and Shivalik Agro Poly Products Ltd. & Ors., reported in 2021 SCC Online CCI 65 (Ref Case No. 7/2018) (ii) Eastern Railway, Kolkata Vs. Chandra Brothers, reported in 2021 SCC Online CCI 50 (Ref Case No. 2/2018) (iii) Mr. Rizwanul Haq Khan Vs. Mersen (India) Pvt. Ltd. reported in 2021 SCC Online CCI 49 (Ref Case No. 2/2016). 56. Accordingly, the appellant has prayed for: (i) Allow the present appeal and set aside the order dated 04.04.2022 passed by the Hon'ble Competition Commission of India in the matter 'SuoMotu Case No. 1 of 2020' (ii) Annul or reduce the penalty imposed by the Respondent on the Appellants; Submission of the Respondent 57. The respondent submitted that the Commission had grouped the parties under in 3 sets, where Appellant No. 1 and Austere Systems emerged as masterminds, to orchestrate the rigging of the bids for....
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....sting, therefore, both Appellant Nos. 1 and 2 submitted their bids due to the apprehension that the tenders for soil testing may get cancelled due to lack of bids. vi) That Mr. Naresh Kumar Sharma of M/s Saraswati Sales Corporation in his statement has stated that Saraswati Sales had submitted bids at the request of Appellant No. 3, as a cover bid or supporting bid so that Appellant No. 1's bid does not get rejected due to insufficient number of bids. Further, Appellant No. 3 had decided the bid price quotation for the 2017 Tender and 2018 Tender for Bareilly and Moradabad divisions. vii) Fake experience certificates and work orders provided by Appellant No. 1 to rival bidders: Appellant No. 1 had issued fake experience certificates to M/s Siddhi Vinayak and M/s Satish Kumar being the rival bidders and the same bore the same date and were issued despite the fact that these entities never had any soil testing experience or experience of working on ICP-OES machine. Further, Appellant No. 1 also issued fake work orders for conducting 50,000-55,000 soil samples to M/s Siddhi Vinayak and M/s Satish Kumar. viii) Fake invoices arranged by Appellant No. 1 to ....
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....ew of extant regulations. According to Regulation 41(5) of the CCI (General Regulation), 2009, the CCI has a discretion to grant the right to cross examination, only if the CCI deems it "necessary" or "expedient". However, in the present case, the Appellants never sought the right to cross examination and keeping in view the fact that, prima facie the DG and the CCI found palpable evidence (own admissions of the Appellants) along with ample circumstantial evidence, sufficient to hold that the Appellants were in contravention of the Act. It is submitted that per se the rule is applicable for Section 3 violations, which is rebuttable, and the onus is on the Appellants to prove that they did not violate the provisions of the Act, which in the present case, the Appellants failed to do so before the DG and the CCI. xiii) Appellant No. 1 in complete violation of the tender conditions, had illegally sub-contracted the work illegally to M/s Siddhi Vinayak and M/s M/s Satish Kumar. xiv) Common Appeal: It is also pertinent to note that Appellant No. 1 has contended that there was no collusive bidding with Appellant No. 2, however, the present appeal has been filed by both A....
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....ions, M/s Saraswati Sales, M/s Satish Kumar, M/s Siddhi Vinayak and M/s Chaitanya Business Outsourcing and Set-III included M/s Yash Solutions and M/s Austere Systems. 64. Extracts from the statement of Sh. Naresh Kumar Sharma, Proprietor M/s Saraswati Sales Corporation Bareilly recorded on oath 05.12.2020. "Q.3 What is your role and responsibilities in your firm M/s Saraswati Sales Corporation? A. 3 Being the sole proprietor of my firm, all the decisions are taken by me and I am only responsible for the entire work of my firm Q.7. Has your Firm ever bid in any tender for Soil Testing floated by Govt. of UP during 2017 & 2018? If yes, please provide details A. 7. My firm has never participated in any tender related to soil testing floated by government of U P Q. 18. Did your Firm has the necessary infrastructure such as Laboratory. Equipment, trained manpower etc. required for testing of soil samples? A. 18. No. Q. 19. Where was your Soil Testing lab situated and what machines & technical manpower were available? A 19. I do not have any soil testing laboratory as I or my firm has never engaged in soil testin....
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....wal after handing over copies of the aforesaid documents to him. 65. In his statement on 05 12 2020, Sh Naresh Kumar Sharma had feigned ignorance about the bids submitted by his firm in the 2018 soil testing tenders. However, when he was confronted with the records of the Earnest Money Deposit (EMD) submitted in the form of FDR and Tender fees submitted in the form of Demand craft, which were prepared from his own bank account and was submitted by his firm in the said tenders, he accepted in his statement recorded on 29.12.2020, that his firm had submitted bids in the said tenders. "Q. 1 This is in continuation of your statement recorded on oath on 05.12.2020 copy shown to you as. As you had denied in your earlier statement dated 05.12 2020 that you had not submitted any bids in the soil testing tenders issued by Bareilly & Moradabad divisions of the Deputy Director Soil testing. Uttar Pradesh Government in 2018, I would request you to confirm the same. A. 1. Yes, I admit that my firm had submitted bids in the UP Government Soil testing tenders for Bareilly and Moradabad Divisions during 2017 and 2018. Shri Vivek Saxena, who was my authorized signatory had disc....
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....Solutions in the aforesaid tenders. The said action on my part to assist another bidder in a Government Tender, by way of forming a group and under a conspiracy was illegal and should not have happened. Q.9. How did you procure experience certificate from M/s Austere System Pvt Ltd.? A. 9. Experience Certificate were arranged by Sh. Praveen Agarwal and I have no knowledge from where the said certificate was arranged. Q. 10. How did you procure Invoices for purchasing of ICP-OPs machine which is used for soil testing? A. 10. The said invoices were arranged by Sh. Praveen Agarwal and 1 have no knowledge from where the said invoices were arranged. Q. 11. Did you submit undertaking for establishment of soil testing lab in Bareilly and Moradabad tenders? A. 11. The said undertakings were submitted on behalf of my firm however, the same were arranged by Sh. Praveen Agarwal and the same were submitted by my firm as a supporting/cover bid. Q. 38. I am showing you the CDR between 16.05.2018 to 06.10.2018 which you had with Sh. Praveen Agarwal. During the above telephonic discussion what exactly did you discuss with Sh. Praveen A....
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.... the said tenders were fake. vi) Thus, there was no other reason for M/s Saraswati Sales Corporation to submit bids in the 2018 soil testing tenders of Moradabad, Bareilly and Aligarh with fake and manipulated documents, but to submit cover bids in support of M/s Yash Solutions, on the request of Sh Praveen Agarwal, so that Government tenders are not cancelled due to insufficient number of bids. Sh Sharma has also admitted that his act of assisting Sh Praveen Agarwal by way of submission of cover bids/supporting bids in a Government Tender by forming a group was illegal and should not have happened. 67. In view of the above, it can be concluded that M/s Saraswati Sales Corporation submitted cover bids in support of M/s Yash Solutions, using fake documents provided by M/s Yash Solutions, in the soil testing tenders of the Bareilly, Moradabad & Aligarh divisions of the Agriculture Department, Uttar Pradesh in the year 2018, so that tenders are not cancelled due to insufficient number of bids. 68. Extracts from the statement of Sh. Satish Kumar Agarwal, Proprietor of M/s Satish Kumar Agarwal M/s Satish Kumar Agarwal (OP-2) had submitted its bids in the soil testing tend....
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.... firms fulfil the technical eligibility criteria in the said tenders? A 15 I did not examine the eligibility criteria for soil testing tender as it was first time such tenders were issued by UP Government Q. 16. Details of any other related firms or sister concerns who may be engaged in soil testing work/business. A. 16. My other firm registered in the name of my wife had also bid in these tenders. However, all the business-related work of M/s Siddhi Vinayak & Sons is looked after by me personally Q18. Did your Firm have the necessary infrastructure such as a Lab? Laboratory Equipment, trained manpower etc. required for testing of soil samples? A 18. No, both my firms namely M/s Satish Kumar Aggarwal and M/s Siddhi Vinayak & Sons did not have the necessary infrastructure such as Lab, Laboratory Equipment, trained manpower etc, required for testing of soil samples when I had submitted those bids. Q. 19. I am showing you the "Undertakings submitted by your Firms Satish Kumar Agarwal & Siddhi Vinayak & sons to the Agriculture Department during the tender process for having established a lab for soil testing in Bareilly. Where in Ba....
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....Serial Number IC74DC173313 for Your firm & the Invoice of M/s Yash Solutions Pvt Ltd submitted in the Bareilly & Moradabad tenders? A. 27. I do not know. Q. 28. From where did you get the above-mentioned invoice? A. 28. I do not know. Q. 29. Who provided the said Invoice to you and why? A. 29. I do not know. Q. 30. I am showing the letter received from M/s Thermo Fisher Scientific India Private Limited confirming that no sale of any ICP-OES machine was made to either to M/s Satish Kumar Aggarwal and M/s Siddhi Vinayak & Sons. Why did you submit fake invoices for said machine in the tenders of soil testing in Moradabad and Bareilly Divisions during 2018? A. 30. I had submitted the said fake invoices with an intention to service the contract if it was awarded to my firms Q. 31. I am showing you the Invoice bearing no. 7000 dated 01.07.2017 raised by M/s Today Tech Scientific Solutions, Ambala Cantt in favour of your Firm M/s Satish Kumar Agarwal for purchase of certain items, which was submitted by your Firm to the Department of Agriculture, Govt. of UP, during the tendering process in the year 2018-19 for B....
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....Mis Satish Kumar Agarwal and M/s Siddhi Vinayak & Sons by Yash Solutions? A. 41. I have nothing to say. Q. 42. M/s Yash Solutions have certified that your Firm had conducted 52000 sample tests for them. How did your Firm receive this work as a sub- contract from M/s Yash Solutions as the original contract for 2017 was allotted by Department of Agriculture, Govt. of UP to M/s Yash Solutions? A. 42. I do not know Q 43. How did your Firm conduct those sample tests in absence of any soil testing machinery or Lab required for the work? A. 43. I have nothing to say. Q.44 Why M/s Yash Solutions Pvt. Ltd. issued a false "Experience Certificate dated 05.12 2017 in favour of your Firm? A. 44. I do not know. Q 45. How did you decide your firm's financial bids for tenders floated by Department of Agriculture, Govt. of UP during 2018 for Soil testing? A. 45. My employees suggested me the rates which are to be quoted in the above said tender. Q. 46 Can you tell the names of those employees? A. 46. I do not remember the names of those employees. Q. 47. I am showing you the comparative s....
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.... A. 53. Yes, I agree they are linked. However, I have no information as to how this has happened. Q. 54. Do you have any information about M/s Yash Solution or M/s Yash Ornaments and its owners? A. 54. I have no information about M/s Yash Solution or M/s Yash Ornaments. Q. 55. Do you or any of your employees have any interaction/discussion with any employee/partner of any other firm participating in soil testing tenders floated by Department of Agriculture, Govt. of UP for soil testing before or after quoting bid? A. 55. I had no interaction/discussion with any employee/partner of any other firm participating in soil testing tenders floated by Department of Agriculture, Govt. of UP for soil testing before or after quoting a bid. Q.56. Do you know Mr. Praveen Agarwal, partner of M/s Yash Solution /M/s Yash Ornaments? A 56. No, I do not know Mr. Praveen Agarwal. Q. 57. I am showing you CDR of your number 9837758888 which shows that you were in communication with Sh. Praveen Agarwal (Partner of M/s Yash Solutions) during the period of processing of soil testing tenders of Moradabad and Bareilly divisions in 2018. A. 57 Yes, I know Mr. Praveen Agarwal who is ....
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.... employee. Q. 68. I am showing you affidavit submitted by your firm M/s Siddhi Vinayak & Sons in the Aligarh Soil testing tender for the year 2018. The said affidavit mentioned that "Yash Ornament Pvt. Ltd. Company incorporated in terms of the provision of the Companies Act 1956." How it is possible that in your firm's affidavit the name of Yash Ornaments Pvt. Ltd which is a rival bidder of your firm in the soil testing tenders is mentioned. A. 68. I do not know. Q. 69. Has any of your Firms namely M/s Satish Kumar Aggarwal or M/s Siddhi Vinayak & Sons ever been blacklisted by the UP Government? A. 69. Yes. The Agriculture Department of U.P Government blacklisted both my firms namely M/s Satish Kumar Aggarwal and M/s Siddhi Vinayak & Sons for two years questioning the genuineness of the documents submitted by my Firms along with my Bids for the soil tenders. Q. 70. Whether you had appealed the backlisted done by U.P Government. A.70. No, as I was well aware that my firms have submitted manipulated documents in these tenders hence, I did not want to escalate the matter further and appeal in the court. 69. It can be seen from the statement on oath and documen....
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....cuments submitted by his firms with M/s Yash Solutions including False Experience Certificate issued by Yash Solutions, fake Invoices for purchase of ICP-OES machine fake Invoice for purchase of soil testing items, name of Yash Solutions appearing in the Affidavit submitted by M/s Siddhi Vinayak & Sons, phone number of the Authorised Signatory of M/s Yash Solution in the Character Certificate issued to Smt Sangeeta Agarwal, etc but continuously submitted evasive replies "I do not know" or "I do not remember and submitted no explanation for the linkage. viii) Sh Satish Kumar Agarwal initially denied knowing Sh Praveen Kumar Agarwal, Managing Director, M/s Yash Solutions, however when confronted with the CDR of his Mobile number, he admitted having regular interactions with Sh Praveen Kumar Agarwal.. He also admitted to be in regular communication with Sh Nitish Agarwal, CEO as well as Sh Rachit Agarwal (GM), of M/s Yash Solutions. Sh Agarwal admitted that he used to take Sh Rachit's help in completing and submitting tender documents of both his firms. ix) Sh Satish Kumar Agarwal confessed that he had bid separately for both the firms just to show that there is ....
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....s Satish Kumar Agarwal vide his affidavit dated 27.03.2021 submitted that being non-technical person he is totally unaware about the IP address used by him or his firm's Authorised representative. Although all the aforesaid bidder firms are independent entities having separate ownership & addresses, a common IP Address for uploading bids OP-1, OP-2, OP-3 & OP4 as well as usage of Login Id of OP-1 by OP-3, only indicates that, parties had colluded in the submission of bids with a common intention to rig bids in the soil testing tenders of 2018. xvi) In view of the above, it is clear that the submission of bids by M/s Satish Kumar Agarwal and M/s Siddhi Vinayak & Sons in the 2017 & 2018 soil testing tenders had no other locus, but to submit cover bids, as has already been admitted by Sh Satish Kumar Agarwal. The nexus with M/s Yash Solutions makes it evident that the cover bids were issued in support of M/s Yash Solutions, to ensure that tenders are not cancelled due to lack of bids. 70. Smt. Sangeeta Agarwal Proprietor of M/s Siddhi Vinayak and Sons in her statement on oath stated that her firm is a contractor/ supplier of vegetables. Her husband manages the entire a....
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....Kúmar Agarwal in the soil testing tender issued by Agriculture Department Government of U.P Q.4 I am showing you the Bid application of Team-1 Data Management Pvt. Ltd submitted in soil testing tender issued by Bareilly division floated by Department of Agriculture, Govt. of UP in 2017-18, bearing your signature as you were authorized by Team-1 A.4 Yes, I had submitted the bid application as shown to me above Q.7 I am showing you the bids submitted for M/s Siddhi Vinayak & sons in 2018 for Aligarh and Moradabad Division as well as M/s Satish Kumar Agarwal in 2017 for Moradabad Division. A.7 Yes, I have seen and admit that I had signed all the above mentioned documents as an authorised signatory for the above mentioned firms and submitted to the Agriculture Department of U.P Government. I had signed the documents. Q. 9. Whether you had worked in Team 1 data Management company in Lucknow. A.9. No I never worked for any company called Team 1 data Management. I was employed with M/s Jafri Computer in Lucknow and its owner was Mr. Jafri. The company was situated in Chowk area of Lucknow and I was doing NPR data entry work....
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....Yes. I had submitted the Team-1 bid in the 2017 Bareilly tender on the directions of my employer M/s Chaitanya Business Outsourcing Pvt Ltd. Q.21. Do you know any of the Directors/Proprietors/Partners/Employees of any other firms which had submitted bids in the soil testing tenders? A 21. Yes, I know Sh. Satish Kumar Agarwal of M/s Satish Kumar Agarwal which supplies fruits and vegetables to Army and is also owner of Hotel Bareilly Palace. Q 22 How did you submit the bids for M/s Satish Kumar Agarwal and M/s Siddhi Vinayak & Sons, when you were employed with M/s Chaitanya Business/ Yash Ornaments during 2017 & 2018? A. 22. I received Bid documents in respect of M/s Satish Kumar Agarwal and M/s Siddhi Vinayak & Sons from my employer M/s Yash Solutions/ M/s Chaitanya Business Outsourcing which were submitted by me after duly signing the bid documents as per their directions, to the Agriculture Department, UP Government in the Soil testing tenders 2017 & 2018. Q.23. Sh Suraj Singh also submitted a mail dated 25.08.18 from globus [email protected] having an attachment which has names, father's name, date of birth and Aadhar of certain per....
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....itted bids for rival bidders namely M/s Saraswati Sales Corporation, M/s Satish Kumar Agarwal and M/s Siddhi Vinayak and Sons in the 2017 & 2018 soil testing tenders. 75. Extracts of the Statement of Sh Nitish Agarwal, Director of M/s Chaitanya Business Outsourcing Pvt Ltd, recorded on 18.03.2021 Q3 What is your role and responsibilities in your firm M/s Chaitanya Business Outsourcing Pvt. Ltd.? A.3 I am responsible for the entire affairs of my firm and all decision are taken by me Q5. Has your Firm ever bid in any tenders for Soil Testing floated by Govt. of UP? If yes, please provide details? A5 Yes, my firm M/s Chaitanya Business Outsourcing Pvt. Ltd had participated in the tenders for Bareilly division in 2017, as very few companies were present in the business of soil testing. Hence we had submitted our bids along with M/s Yash Solutions, as we were apprehensive that tender may be cancelled due to lack of bids. However, my company had been disqualified on technical basis in the said tender. Further, in 2018 only M/s Yash Solution had submitted bids, as in 2017 tenders M/s Yash had got the contract being the L-1 party. Therefore, M/s Chait....
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....haitanya Business Outsourcing Pvt. Ltd since 2013, he is also a CEO of M/s Yash Solutions since 2016. As per record Sh Nitish Agarwal was the Authorised Signatory for M/s Yash Solutions and had submitted bids in the Bareilly & Moradabad tenders of 2017 as well as the Bareilly, Moradabad, Aligarh & Meerut tenders of 2018 iv) Sh Agarwal admitted that the reason his company M/s Chaitanya Business Outsourcing Pvt. Ltd had participated in the soil testing tenders for Bareilly division in 2017 was that, as very few companies were present in the business of soil testing hence, they had submitted their bid along with M/s Yash Solutions, due to an apprehension that the Government tenders for soil testing may get cancelled due to lack of bids. Further, in 2018 only M/s Yash Solution had submitted bids, as it had already received soil testing contracts from the Agriculture Department Bareilly & Moradabad divisions in 2017 hence, his group company M/s Chaitanya Business did not participate in any further tenders after 2017 Bareilly tenders. v) On the basis of the evidence on record and the statement of Sh Nitish Agarwal. It is clear that M/s Chaitanya Business Outsourcing Pvt....
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....rs, when you had no prior soil testing experience? A.10. Our company had become eligible as it had fulfilled all the eligibility criteria fixed by the tender issuing agency. Q. 12. When was your lab set up? A. 12. In 2017 before U.P Government issued the soil testing tenders. Q. 13. What equipment were available in your Lab for soil testing? A. 13. Soil testing machine and other equipment's. Technical staff and Lab in-charge was also appointed for the Lab before issuance of the tenders. Q. 14. Did you purchase any soil testing machine? If yes when and from where was the machine purchased? A. 14. Yes, in 2017. Q 15. As per copy of the Invoice shown as, your company had purchased a soil testing machine vide invoice dated 04.07.2017. Why was this machine purchased and where was it installed? A. 15. Yes, I have seen. As I wanted to bid in the soil testing tenders to be issued by Government of U.P. I invested in soil testing machine which was installed at Lucknow road, Bareilly. Q. 16. The public notice for inviting tenders for soil testing by Bareilly division was issued on 26.07.2017, why did you....
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....ever visited their soil testing labs to ensure if they have all the necessary infrastructure such as Machine, and trained manpower to conduct the Soil Samples testing? A. 24. No. Q.25. Where is/was their soil testing labs situated? A. 25. I do not know. Q. 26. Did your Firm entered into any agreement or MoU with M/s Siddhi Vinayak & Sons and M/s Satish Kumar Agarwal, for carrying out the soil testing work for your Firm? A. 26. I do not know. Q. 27. I am showing you the relevant extracts of the statement dated 12.01.2021 i.e. Q. 18, 19 & 22, submitted by Sh. Satish Kumar Agarwal, Proprietor of M/s Satish Kumar Agarwal. A. 27. Yes, I have seen, Q. 28. In view of the above said statement on oath by Sh. Satish Kumar Agarwal it is clear that your Firm had issued fake "Experience Certificates" to M/s Satish Kumar Agarwal and M/s Siddhi Vinayak & Sons for conducting soil sample tests for your Firm. Why did your firm issue fake certificate to both the said firms? A. 28. I do not know why such fake experience certificate and work orders were issued to both these firms. However, I have no justification for issui....
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....mments. A. 37. Yes, I have seen. However, I have nothing to say. Q.38. I am showing you the relevant extracts of the statement dated 29.12.2021 i.e. Question no. 6, of Sh Naresh Kumar Sharma., Sole Proprietor of M/s Saraswati Sales Corporation Bareilly. Please submit your comments. A. 38. Yes, I have seen. However, I have nothing to say. Q.39. Why did you request Sh Naresh Kumar Sharma to submit cover bids in support of your firm in the UP Government Soil testing tenders? A. 39. I have no comments to submit. Q. 40. I am showing you the Bank statement of Sh Suraj Singh S/o Sh Shyam Singh for 2017-18 & 2018-19 who is having his account with SBI Cantt Branch Bareilly, wherein it is seen that he is being paid regular sum of money every month since May 2017. Why are you crediting the said amount regularly to his bank account? A. 40. Yes, the amount is being credited regularly because he was doing Aadhar related work for my firm and the amount was towards his salary. Q. 41. I am showing you the relevant extract of the statement dated 01.03.2021 le reply to question no. 16 to 19 of Sh. Suraj Singh who is an employee o....
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....horised Signatory, which was submitted in the Jhansi tender, which is having the same mobile number as mentioned in the character certificate issued to Mrs. Sangeeta Agarwal Proprietor of M/s Siddhi Vinayak and sons which was your rival bidder in the 2018 tenders. A. 51. Yes, I have seen. Q. 52. How the mobile no. of Mr. Rachit Agarwal, who is Authorized Signatory of your company, appearing on the character certificate issued to Mrs. Sangeeta Agarwal? A. 52. I do not know. Q. 53. I am showing you the extract of the statement of Sh Satish Kumar Agarwal i.e. Q 51 & 60? A. 53. Yes, I have seen. Q. 54. Why did Sh Rachit Agarwal General Manager and Authorised Signatory of your firm for the soil testing tenders, assisted your rival bidder/competitor in the soil testing tenders in procuring Character Certificate? A. 54. The action of Sh. Rachit Agarwal in submitting bid documents of my rival bidder cannot be justified and illegal also. Q. 55. When M/s Chaitanya Business Outsourcing is your sister concern having common Director/Employees, why two separate bids were submitted by related firms in the 2017 Bareilly tender....
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....Government and the contract for the soil testing cancelled in September 2018. Q. 64. Any other Information you would like to submit with regards to this matter. A. 64. No. Q. 65 Do you have any regrets? A 65. Yes, I am ready for whatever punishment is appropriate 78. The following points emerge from the above statements of Sh Praveen Kumar Agarwal and concerned parties on oath and evidence on record: i) M/s Yash Solutions (A Unit of Yash Ornaments) had submitted its bids in the soil testing tenders of Agriculture Department, Government of Uttar Pradesh, Moradabad and Bareilly divisions in the year 2017 and in the Bareilly. Moradabad, Jhansi, Saharanpur and Aligarh division in 2016. The financial bids for the Jhansi division in 2018 were not opened and the tenders were cancelled. M/s Yash Solutions had won contracts in the Bareilly and Moradabad division tenders in the year 2017 and Bareilly, Moradabad and Aligarh division tenders in the year 2018. ii) Sh Praveen Kumar Agarwal admitted that, as very few companies were operative in soil testing business in the 2017, he had decided to submit separate bids on behalf of both his g....
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....Solution had purchased soil testing machines however, no sale was made by their company to M/s Satish Kumar Agarwal, M/s Siddhi Vinayak and Sons and M/s Saraswati Sales Corporation, which implies that the invoices submitted by these firms in the soil testing tenders of 2018 were fake. viii) Further, Excise Department Haryana vide their letter dated 30.06.2020 stated that no sale was made by M/s Today Tech Scientific to M/s Satish Kumar Agarwal and M/s Siddhi Vinayak & Sons meaning thereby that the invoices submitted by M/s Satish Kumar Agarwal and M/s Siddhi Vinayak & Sons were also fake. ix) Sh Satish Kumar Agarwal in his statement had confessed that he had submitted fake documents and bid separately for both his firms M/s Satish Kumar Agarwal, M/s Siddhi Vinayak and Sons in the 2017 Moradabad and 2018 Aligarh, Moradabad and Bareilly tenders, just to show that there is enough competition and to avoid cancellation of tenders due to lack of participation. x) Sh Naresh Kumar Sharma in his statement on record had submitted that the fake invoices for purchase of ICP-OES soil testing machine submitted by his firm in the soil testing tenders of 2018 were arrang....
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....Siddhi Vinayak & Sons, M/s Saraswati Sales Corporation and M/s Satish Kumar Agarwal were also submitted from the same IP Address. In response to the notice of the investigation dated 25.03.2021 regarding common IP address with for submission of E-bids Praveen Kumar Agarwal vide his affidavit dated 27.03.2021 submitted that being technically incapable, he cannot submit any clarification in the matter. xvi) Although all the aforesaid bidder firms are independent entities having separate ownership, a common IP Address only proves that, through collusion and cartelization M/s Yash Solutions, M/s Siddhi Vinayak & Sons, M/s Saraswati Sales Corporation and M/s Satish Kumar Agarwal had rigged bids in the soil testing tenders of 2018. xvii) Government of U.P. had black listed M/s Austere Systems and M/s Yash Solutions for bid rigging and collusion for the aforesaid soil testing contracts in late 2018. 79. It can be seen from the discussion in the foregoing paras that M/s Yash Solutions (Appellant 1) in collusion and through concerted efforts with other parties, namely, M/s Siddhi Vinayak & Sons, M/s Saraswati Sales Corporation and M/s Satish Kumar Agarwal, had indulged ....
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....r bid? A. 67. It could have been a mistake & I was also not keen for Bareilly tender. Q. 68. Why were you not keen for Bareilly but for other divisions? A. 68. I do not know. Q. 69. Why your company did not submit bids in the soil testing tenders of Moradabad and Aligarh Divisions in the year 2018? A. 69. As we were having limited resources. Q 70 Why your company submitted bids in Meerut & Saharanpur divisions soil testing tenders of 2018? A. 70. As we were having limited resources Q. 71. I am showing you a copy of the Experience Certificates for analysing soil samples, issued by M/s Austere Systems Pvt Ltd to M/s Saraswati Sales Corporation, Bareilly which has been submitted by them in the soil testing tenders of Moradabad & Bareilly Divisions in the year 2018. How and why did your company issue the said certificate to M/s Saraswati Sales Corporation? A. 71. I admit that the aforesaid experience certificates issued on my company's letter head and I also admit that these certificates bear my signature & stamp of my company. However, I never issued these certificates to M/s Saraswati Sales Corporati....
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....ted high price bids in the 2018 Meerut and Saharanpur tenders, as he was not interested in those tenders. vi) Sh Agarwal's statement is self-contradictory as in the first place he accepts that he had no interest in getting the contract however, at the same time he could not explain as to why his company submitted high price bids in the said tenders. It can therefore be concluded that there was no other explanation for submission of high price bids by M/s Yash Solutions, except that they were cover bids in support of M/s Austere Systems Pvt Ltd. vii) In view of the above & the fact that as only three bidders namely M/s Austere Systems, M/s Yash Solutions & M/s Delicacy Continental had submitted bids in the 2018 Meerut & Saharanpur tenders, it can be concluded that M/s Austere Systems Pvt Ltd under an arrangement/understanding, with M/s Yash Solutions and M/s Delicacy Continental Pvt ltd, had rigged the bids of said soil testing tenders in 2018. viii) Sh Praveen Kumar Agarwal in his statement could not submit any justification for quoting high price bids in the Saharanpur and Meerut soil testing tenders of 2018. Sh Agarwal submitted that he was not inte....
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....that (para 38) "...xxx... 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....". However, use of same IP address is by rival bidders is only one of the activities in bid rigging. The practice of collusion and bid rigging has been established in the instant case, through evidence on record and statements of the persons involved. 87. In their legal submissions the Appellant have stated that Impugned Order was passed without considering any of the ingredients of Section 19(3) while considering whether there is an appreciable adverse effect on competition, before coming to the conclusion that the Appellant entered into anticompetitive practices since there was presence of no agreement, whether oral or written, as mentioned under section 19 (3) of the Act in view of the Hon'ble Supreme Court of India in the matter of Rajasthan Cylinders and Containers Ltd. v. Union of India and Others, (supra). The very para 75 cited by appellants clearly mentions that for the cases under Clauses (a) to (d) Section 3(3) of the Act, the enquiry....
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....nacting the Competition Act. 91. In this context, we looked into the aforesaid Judgment of Excel Corp Care (supra) closely, regarding the facts of the case and whether the aforesaid ratio applies squarely to the present appeal. 92. In the Excel Crop Care matter (supra) the matter related to procurement by FCI for Aluminium Phosphide tablets (for short APT) of 3 gm each between the year 2007-2009. The relevant para of the judgement are extracted below: 3.2. There were only four manufacturers of APT, namely, M/s Excel Crop Care Ltd.. M/s UPL, M/s Sandhya Organics Chemicals (P) Ltd. (which are the three appellants herein) and Agrosynth Chemicals Ltd. 3.3. It was noted that FCI had adopted the process of tender, which is normally a global tender. The tender concerned had two-bid system, that is, first techno-commercial and then the financial bid. On the basis of the bids, the rate running contracts are executed with successful bidders. The DG found that there was also a committee comprising of responsible officers for evaluation of technical and price bids. As per the practice, the lowest bidder is invited by the Committee for negotiations and after negotiations....