Informant, a Company engaged in the business of providing application software solutions and services, particularly to the agencies of the Government of India, State Governments, UTs, PSUs, semi-government agencies etc. The informant filed the present information upon being aggrieved by the purported abuse of dominant position by the opposite parties while providing e-procurement solutions to the Central Government/ State Governments/ Government Departments/ PSUs/ Government Agencies etc. on nomination basis without any open tender or otherwise going through competitive bidding process. As per the information, by abusing the dominant position in the relevant market, the opposite parties were allegedly entering into agreements with the Central Government and its Departments/ PSUs/ Agencies etc. as also with the State Governments and their Departments/ PSUs/ Agencies etc. to provide e-procurement solutions on nomination basis without open tender or any other competitive bidding process.
The Commission took providing/procuring e-tendering/e-procurement softwares, solutions and services in India as the relevant market and observed that the conduct of engaging vendors without bidding process per se may not fall foul of the provisions of section 4 of the Competition Act so long as the Central Government does not impose e-procurement solutions of its entities upon any other Ministry of Central/ State and other Government agencies, PSUs, etc. and so long as they are left free to obtain e-procurement solutions through other vendors (including private vendors) or if they are given choice to devise their own e-procurement solutions.
The information was held to be misconceived. The e-procurement platform developed by the Central Government entities need not be made use of by unwilling Central Ministries/ State Governments/ PSUs etc. and reference was made to assurance made on behalf of the Central Government before the Delhi High Court in WP(C) No. 9342 of 2009 that it will not impose its e-procurement solution to any other Ministry of Central/ State and other Government agencies, PSUs etc. and they shall have the choice to devise their own e-procurement solutions and accordingly, the grievances raised by the informant held to be squarely covered and addressed. As further noted, criterion other than tendering/ bidding could not be construed as anti-competitive so long as the same is not unfair or discriminatory or otherwise results in denial of market access to other market participants etc. in contravention of the provisions of the Act.
It was accordingly held that no case of contravention of the provisions of the Act was made out against the opposite parties and the information was ordered to be closed.
[NexTenders (India) Pvt. Ltd. vs. Ministry of Communication and Information Technology & Ors.]