The Competition Commission has requested that the Competition Tribunal issue a declaratory order against construction companies Concor and WBHO, stating that they have engaged in collusive tendering in contravention of the Competition Act.

Earlier this week, the commission referred the two matters to the tribunal, where the companies had applied for leniency under the Construction Fast-Track Settlement process.

The fast-track process stemmed from an invitation to firms in the construction industry to engage in settlements for contraventions of the Act.

In response to the invitation, Concor and WBHO disclosed projects where each of them had allegedly been involved in collusive tendering. Concor and WBHO were first to disclose their involvement in some projects but not the first to disclose their involvement in others.

The companies had settled with the commission on their involvement in projects that they were not first to disclose and were granted conditional immunity by the commission in respect of projects that they were first to disclose.

The commission’s referral to the tribunal related to the projects for which they were granted conditional immunity.

The commission was seeking declaratory orders from the tribunal that Concor and WBHO had contravened Section 4(1)(b)(iii) of the Competition Act in respect of projects for which they were granted conditional immunity.

A declaratory order by the tribunal that a firm has engaged in a prohibited practice was a prerequisite for bringing a civil claim for damages against a firm that participated in cartel conduct.

Accordingly, the commission brought the present applications to safeguard and preserve the rights of affected third parties to bring civil damages claims.

The commission was embarking on this process, as the parties could not reach an agreement in terms of which both Concor and WBHO would consent to a voluntarily process of obtaining a declaratory order from the tribunal.