Transcript Introduction - African Competition Forum

The fight against bid rigging- NACC
experience
Bridget Dundee
Dar es Salaam, Tanzania, 2013
Powerpoint Templates
Introduction
 Background
 Enforcement
 Commissions approach
 Current investigation
 Concurrent jurisdiction and collaboration
 Advocacy
Background
 Competition Act, 2 of 2003( “Act”)
 The Act is enforced by the Namibian Competition
(“Commission”) and the High Court of Namibia (“High Court”).
Commission
 The Act regulates prohibited practices and specifically prohibits certain
horizontal restrictive practices (unlawful conduct between competitors).
 The legislation confers broad investigative powers on the Commission
Enforcement
• Investigating cases following complaints from the public or
initiations by the Secretary to the Commission
• investigative powers to obtain evidence:
– Summons
– Search and seizure (raids)
• Corporate Leniency Policy
– Not yet operational- Commission policy for review and
approval with Minister of Trade.
– Administrative penalty of up to 10% of a firm’s annual
turnover
• Civil damages
Collusive tendering
 S 23 (1) Competition Act 2,2003:
Agreements between, or concerted practice, by, undertakings, or
decisions by associations of undertakings, are prohibited if it is
between parties in a horizontal relationship and if –
(a)…..; or
(b) S 23 (3) … if it involves any of the following restrictive horizontal
practices:
 directly or indirectly fixing a purchase or selling price or any other
trading condition;
 dividing markets by allocating customers, suppliers, areas , or
specific types of goods or services; or
(c) involves collusive tendering
Current investigation
 Alleged collusion between construction companies relating to a tender
for road construction work.
 The complainant alleged that there were several misrepresentations
made in the tender filing and that there was collusion in contravention
of the Act and perhaps even tender fraud.
 Complainant alleges that the tenders submitted were all completed by
the same person, and all companies involved tendered to complete
the work at fairly similar prices.
 The complainant has already blacklisted the firms accused of collusion.
 Commission decided to investigate the complaint in 2013.
Decision to investigate
Suspicious Indicators( circumstantial evidence)
 The Commission decided to investigate the complaint based on
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circumstantial evidence for which no other explanation could be
identified save for the direct cooperation between the involved bidders.
There is some indication of a physical alteration of bids, particularly at
the last minute.
The documentation submitted by the companies comprised certain
identical documents, specific typographic errors were repeated by
companies;
Bids of all companies are very close ( possibly an indicator that bidders
knew each others' prices);
There is physical evidence of collusion, different companies submitting
bids with the same handwriting.
Corruption vs bid rigging-concurrent
jurisdiction
Anti
corruption
Commission
Mandated by Anti
Corruption Act 8 of
2003
Prevention and
punishment of
corruption in
Namibia.
NACC
Concurrent
Jurisdiction
and
collaboration
Mandated by
Competition Act
2,2003
To safeguard
and promote
competition in the
Namibian market
Tender rigging is
specifically
addressed in
Chapter 4 of the
ACC Act.
NaCC Act provides for
collaboration with
various institutions in
order to co- ordinate
and harmonise
jurisdiciton over
competition matters
MOU between ACC and
NACC
cooperate against bid rigging
and collusive tendering
Advocacy
 Commission continues to reinforce its strategic partnerships
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with public authorities in view of raising awareness, detection
and prevention , vis-a – vis collusive tendering
Memorandum of Understanding- Enhance co-operation
between NACC, ACC, government procurement agencies
Long term project aim at involving educators and professions
expanding their responsibilities in terms of inculcating ethical
behavior in their members
Competition week, September 2013- collusive tendering
workshop for public administration and procurement agencies
The Commission intervention will target areas of raising
awareness towards bid rigging of public officers and public
authorities, disseminating tools for identifying potential red
flags and sanctioning anti competitive practices.
Thank you
Bridget Dundee
Tel: + 264 (0) 61 224622
Fax: + 264 (0) 61 409109
E-mail: [email protected]
Website: www.nacc.com.na