CompComm’s case against Power Construction for collusive tendering stays
Power Construction and its subsidiary, Power Construction (Western Cape), were unsuccessful in their bid to have a collusive tendering complaint, filed by the Competition Commission with the Competition Tribunal in December 2014, withdrawn.
The matter involves a 2006 South African National Roads Agency Limited (Sanral) maintenance project on the N1 between Touws River and Langsberg. At the time, Cape-based construction company Haw and Inglis attended a briefing in April that year and concluded that it was the only viable bidder for the project.
Concerned that the tender would be cancelled, Haw and Inglis asked Power Construction (Western Cape) to submit a bid for the tender, which it did.
Power Construction admitted to this contravention of the Competition Act and others by Power Construction (Western Cape) when taking part in the fast-track settlement process, an initiative by the Competition Commission launched in February 2011.
The commission had invited companies from the construction sector to come forward and declare any contraventions to the Act.
Subsequently, in a judgment released on Thursday, the Competition Tribunal dismissed arguments that Power Construction (Western Cape) was not directly named in the original complaint initiation, that Power Construction could not be held accountable for the actions of a subsidiary it bought after the contravention, and that the prohibited conduct had occurred more than three years before the commission initiated its complaint.
With regard to the prohibition finding, the tribunal said the practices “could only be said to cease when the effects have ceased”. Since the last payment to winning bidder Haw and Inglis took place in February 2009, it was held that the complaint against Power Construction (Western Cape) had not prescribed.
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