COMPETITION TRIBUNAL DISMISSES COLLUSIVE TENDERING ALLEGATIONS AGAINST BRAND ACTIVITATION FIRMS
* NOTE: Full decision is available on www.comptrib.co.za
The Competition Tribunal has dismissed allegations of collusive tendering and price fixing brought by the Competition Commission against two brand activation firms: Geometry Global (Pty) Ltd and Vaxiprox (Pty) Ltd.
The Tribunal’s finding comes after the Commission referred a complaint of anti-competitive conduct to the Tribunal alleging that Geometry and Vaxiprox colluded on a 2014 tender issued by South African Tourism (SAT) for brand activation services in a section of the its annual Indaba conference called Techzone. The Commission’s claim was founded on a series of e-mails between SAT, Geometry and Vaxiprox discussing quotations for the tender.
Both respondents denied the allegations arguing that, given the amount of work to be undertaken, SAT instructed them to form a joint venture in response to the tender. However they had no formal recorded agreement to this effect. The respondents argued that, as joint venture partners, they could not be considered competitors within the meaning of the Competition Act.
After a hearing on the merits the Tribunal dismissed the Commission’s allegations finding, on the facts of this case, that the respondents actions could not be seen as conduct seeking to subvert the competitive process of the tender. However the Tribunal cautioned those claiming to operate as a joint venture that “whispered agreements at side meetings are poor substitutes for formalised memorandums of understanding or joint venture agreements”.
The full non-confidential judgment is available on the Tribunal’s website: www.comptrib.co.za.
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