The Competition Authority (CA) is struggling to convince the Competition Commission to penalize two local companies, Creative Business Solutions and Rabbit Group for bid rigging a multi-million pula government tender.
CA approached the Gaborone High Court in 2015 and the Court of Appeal (CoA) seeking an order to compel the Competition Commission to hear and adjudicate the case. This is after the Commission refused to hear the case, accusing CA of contravening the CA Act in handling the case.
At the CoA last week, CA maintained its stance that the Competition Commission should hear the case and penalize the two companies, as investigations confirmed that the entities were involved in the bid rigging of a multi-million pula government tender. CA investigations have established that Creative Business Solutions and Rabbit Group won the multi-million pula tender to supply sugar beans to government schools countrywide through anti-competitive practices. CA has revealed that the two entities could have agreed to set tender prices at P58 047, 304 and P55 956, 600 respectively. The organization also revealed that the two companies were involved in anti-competitive practices by allocating markets where Creative Business Solutions supplied schools in Northern Botswana while Rabbit Group supplied southern Botswana.
“Investigations have revealed that the companies divided the tender amongst themselves by geographic area and this is prohibited under CA Act Section 25 which prohibits use of price information to tender collusively,” said CA.
It has however emerged that the Competition Commission on the other hand continues to stand by its argument that it cannot hear and adjudicate the matter because the case was not properly referred to its panel of judges. The Commission this week maintained its position that its panel of judges cannot adjudicate and penalize the two companies because CA referred the matter for hearing way beyond the statutory limit of 12 months following investigations and referral of the case was made by a person who did not have the authority to do so. “The Act states that Competition Authority CEO shall refer the case to the Commission, but in this instance he is not the one who referred the matter. The Commission has therefore concluded that there has been a non-referral in accordance with section 39 of Competition Act,” states the commission.
Appearing before the CoA, lawyers representing Creative Business Solutions and Rabbit Group Mboki Chilisa and Otto Itumeleng also backed the commission, saying there is no way the companies can be charged as CA has contravened CA Act in its handling of the matter.
According to the Competition Act CA is responsible to among others investigate anti-competitive practices in the economy and refer cases of bid rigging to the Competition Commission which is empowered by the law to hear and adjudicate cases of anti-competition.