Background of the case:

A complaint was filed by the M/s Catkin Engineering Sale & Services (Pvt.) Limited (“Complainant”) with the Commission against the KPK Directorate of Agriculture Engineering (“Respondent”) on the ground that the Respondent through its tender for procurement and installation of ‘Deep Solar Pumping Systems on Agriculture Tube-wells/Open-wells’, had indulged in restrictive trading conditions in contravention of the Competition Act, 2010. The compliant specifically prayed for the deletion of the following tender conditions:

i. Company / firm must have registration with Khyber Pakhtunkhwa Revenue Authority;

ii. Company / firm must have PKR 200 million average turnover for the last 03 years in solar pumping systems;

iii. Company / firm must have experience of projects of similar and complex nature worth PKR 10 million completed in last five years; and

iv. Company / firm should have test bed for verification / testing of solar pumps along with all accessories as per ISO 9906 in company premises.

An enquiry was constituted to duly probe into the matter.

Findings of the Enquiry Report:

The enquiry report concluded the clauses of the relevant tender did not have an adverse impact on Competition. It was recommended that as no prima facie violation of Section 3 & 4 was made out, the matter may be closed.

As per the Commissions verdict in the matter of appeal filed by Fecto Belarus Tractors (Pvt.) Limited, the Complainant was provided with an opportunity to present his case in respect to the findings of the enquiry committee, as per the laws of natural justice.

Conclusion:

The Complainants representative assured the Bench that he had no qualms in respect to the findings of the enquiry report. He further submitted that the Complainants were of the view that the complaint be withdrawn in the instant matter.

The Commission held the complaint meritless and rejected the same, and laid down the following guidelines for application of Section 37(2) of the Competition Act:

i. It will be fair and in accordance with the principles of natural justice that prior to the disposal of the complaint, an opportunity of hearing be given to the complainant;

ii. Mere filing of a formal complaint shall not trigger initiation of a formal enquiry in terms of Section 37(2). For initiation of enquiry, the complaint must satisfy the criteria laid down under law, that is, it must e filed by an undertaking or a registered association of consumers and must be substantiated with prima facie evidence; and

iii. For cases involving deceptive marketing practices, the onus is on the concerned undertaking, that is, the manufacturer / seller of goods or provider of services to prove the claims made by them in the process of marketing their product and / or services.