The
Competition Commission on Wednesday dismissed a complaint against the National Highways Authority of India (NHAI) alleging unfair business practices, acknowledging the prerogative of the procurer or buyer to decide tender conditions as per its requirements. The matter pertains to prescription of specific eligibility criteria in tender documents for engagement of consultants by NHAI. The ruling came on a complaint filed by an individual who alleged that the sub-criteria for relevant experience being prescribed by NHAI in its request for proposal (RFP) for engaging consultants is different from the criteria followed by the Ministry of Road Transport and Highways (MoRTH)/National Highways and Infrastructure Development Corporation Ltd. The informant averred that NHAI is following “monopolistic and restrictive trade practice” resulting in abuse of dominant position in the market and requested the Commission to initiate an inquiry.
NHAI, in its submissions, said that the matter pertains to RFP for engagement of authority engineer and it follows the standard RFP document issued by MoRTH for the same. Further, it said that depending upon the nature of works under consideration, project specific changes may be incorporated in RFP, which is also in accordance with MoRTH standard for RFP. NHAI submitted that there is no deviation in experience requirement between the RFP adopted by NHAI and the standard RFP document issued by MoRTH. The Competition Commission of India (CCI) said the prescription of eligibility criteria in the matter does not appear to be unfair/discriminatory, and any service provider with prescribed certification is eligible to participate in the tender.
It said “the Commission has acknowledged the prerogative of the procurer/buyer to decide the tender conditions/technical specifications/clauses in the tender document as per its requirements.” Needless to add, such discretion of procurers would yield to the discipline of the Competition Act if tender documents framed by dominant player contain terms and conditions which are demonstrably unfair/discriminatory, it said. CCI also noted that the complainant has not submitted sufficient evidence to suggest that NHAI holds a dominant position in any relevant market, but acknowledged that “looking at the role and presence of NHAI, it cannot be denied that it is a key player in the relevant market.”
