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[2013] ZACT 74
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Competition Commission v WBHO Construction (Pty) Ltd (017061) [2013] ZACT 74 (22 July 2013)

COMPETITION
TRIBUNAL
REPUBLIC
OF SOUTH AFRICA
Case
No:
017061
In
the matter between:
The
Competition Commission Applicant
and
WBHO
Construction (Pty) Ltd Respondent
Panel: N
Manoim (Presiding Member), Y Carrim (Tribunal Member) and T Madima
(Tribunal Member)
Heard
on: 18 July 2013
Decided
on: 22 July 2013
Order
The
Tribunal hereby confirms the order as agreed to and proposed by the
Competition Commission and the respondent, annexed hereto
marked “A”.
Presiding
Member
N
Manoim
Concurring:
Y Carrim and T Madima
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD
IN PRETORIA
CT
Case no.:
CC
Case no.: 2009Feb4279/2009Sep4641
THE
COMPETITION
COMMISSION Applicant
and
WBHO
CONSTRUCTION (PTY) LTD Respondent
CONSENT
AGREEMENT IN TERMS OF SECTION 49D READ WITH SECTION 58(1)(a)(b)(iii)
AS READ WITH SECTION 58(1)(b) OF THE COMPETITION ACT, 1998 (ACT NO.
89 OF 1993), AS AMENDED, BETWEEN THE COMPETITION COMMISSION
AND WBHO
CONSTRUCTION (PTY) LTD, IN REGARD TO CONTRAVENTIONS OF
SECTION
4(1)(b)
OF THE
COMPETITION ACT, 1998
PREAMBLE
WHEREAS
the
Competition Commission Is empowered to,
inter
alia,
Investigate
alleged
c
ontraventions
of the
Com
petition
Act, 1968;
WHEREAS
the
Competition Commission is empowered to,
inter
alia,
conclude consent agreements in terms of
section 49D
of the
Competition Act, 1998
;
WHEREAS
the
Competition Commission has Invited firms in the construction industry
to
engage
in settlement of contraventions of the Competition Act, 1993;
WHEREAS
WBHO
Construction (Pty) Ltd has accepted this invitation and
has
agreed
to
setjfe in accordance with the terms of the invitation;
NOW
THEREFORE
the
Competition Commission
and
WBHO
Construction (Pty) Ltd hereby
agree
that
application be made to
the
Competition
Tribunal
for
the
confirmation
of
this
Consent
Agreement as an order of the Competition Tribunal in terms of
section
49D
as read with sections
58(1)(a)(ili)
and
58(1
)(b)
of the
Competition Act,
1998
.
1.
Definitions
For
the
purposes
of
this
consent
agreement the following definitions
shall
apply
: .
1.1.
“Act”
means
the Competition Act, 1998 (Act No. 89
of
1998),
as
amended;
1.2.
“
CIDB"
means
the
Construction Industry
Development
Board;
1.3.
“CIDB
Regulations”
refers to the Construction Industry Develoment Regulations, 2004 (as
amended) (Government Notice No. 692 of June 2004, published
in
Government Gazette No. 26427 of June 2004);
1.4.
"CLP”
means the Commission’s Corporate
Leniency
Policy
(Government
Notice No.
828
of
23
May
2008,
published
In
Government Gazette No.
31064
of
23
May
2008);
1.5.
“Commission” means the Competition Commission of South
Africa, a statutory body established in terms of section
19
Off
the
Act, with its principal place of
business
at 1
st
Floor, Mulayo
Building
(Block
C),
the dti Campus, 77 Meintjies Street, Sunnyskfe, Pretoria, Gauteng.
1.6.
“Commissioner”
means
the
Commissioner of the
Competition
Commission,
appointed in terms of
section
22
of the Act;
1.7.
"Complaints” means the complaints
Initiated
by
the
Commissioner
of
the
Competition
Commission
In terms of section
490
of
the Act under case numbers 2009Feb4279 and 2009Sep4841;
1.8.
"Consent
Agreement"
means this agreement duty signed
and
concluded
between the Conimtesion and WBHO Construction (Pty) Ltd
(“WBHO”).
1.9.
“Cover
Price”
means
generally, a price
that
Is
provided
by
a
firm
that
wishes
to win a tender, to a
firm
that
does not wish to do so,
In
order
that the firm
that
does
not wish to win the tender may submit a higher price; or
a
price
that is
provided
by
a
firm
that does not wish to win a tender to a firm that does wish to win
that tender in order that the
firm
that
wishes to win the tender may submit
a
lower
price.
1.10
.
"Invitation”
means the
Invitation
to
Firms in the Construction industry to Engage in Settlement
of
Contraventions
of the
Competition Act, as
published on the website of the Commission
on 1 February 2011;
1.11.
“Nan-prescribed
prohibited practices”
refers
to
prohibited
restrictive horizontal practices relating to the construction
Industry that an contemplated In
section 4(1
)(b)
of
the
Act
and
that
are
on-going or had
not
ceased
three
years
before
the
complaints
were
initiated, as
contemplated
in
section
67
of
the
Act;
1.12.
“Parties”
means the
Commission
and
WBHO;
1.13
.
"Prescribed prohibited practices”
refers to prohibited restrictive
horizontal
practices
relating to the construction industry that are contemplated in
section 4(1)(b) of the Act and that ceased after 30 November
1908,
but more than three years before the
complaints
ware
initiated
1.14.
"Respondent
”
means
WBHO Construction
1.15.
“Settlement”
refers to the invitation
to
firms in
the
construction industry to engage
in
settlement
of contraventions of the Act and the
procedures
detailed therein
1.16.
“Sub-sectors
of the construction industry”
refers to the classes of construction work defined In Schedule 3 of
the CIDB Regulations, substituted by Government Notice No.
8980 of 14
November 2008, published in Government Gazette-No.
31603
of
14
November
2008
1.1.7.
“Tribunal
*
means
the Competition Tribunal of South Africa, a statutory body
established
in
terms of section 26 of the Act, with its principal
place
of
business
at 3
rd
Floor, Mulayo Building (Block C), the
eti
Campus,
77 Meintjies Street, Sunnyside, Pretoria, Gauteng, and
1.18
.
“WBHO”
means WBHO
Construction
(Pty)
Ltd, a company incorporated under the laws of
the
Republic of
South
Africa
with
its primary
place
of
business
at 53“Andries Street, Wynberg, Sandton“
2.
The Complaint
2.1.
On
10
February 2009 the
Commission
initiated
a
complaint
In
terms
of section
49B(1)
of
the
Act
Into alleged prohibited
practices
relating
to collusive conduct
In
the
construction
cf
the
stadiums
for
the
2010
FIFA Soccer
World
Cup
against
Grlnaker-LTA (the construction operating
business
unit
of Aveng), Group Five (Pty) Ltd,
Basi
Road
(Pty)
Ltd,
WBHO
Construction
(Pty) Ltd, Murray & Roberts Limited, Stefan utti Stocks Limited,
Inferfoeton
Abu
Dhabi nv
lb
and
Bouygues
Construction
SA
2.2.
In addition, on 1 September 2009, following the receipt
of
applications
for
Immunity
m terms of the CLP, the
Commission
Initiated
a
complaint
in terms
of
section 48B(1)
of
the Act into particular prohibited practices
relating
to
conduct in
construction
projects,
by
the firms listed below.
The
complaint
concerned alleged contraventions of section
4(1)(b)
of
the
Act
as
regards
price
fixing,
market
allocation
and
collusive
tendering,
The
investigation was initiated against the following firms:
Grinaker-LTA, Aveng (Africa)
Ltd,
Stefanuttf
Stocks Holdings Ltd, Group
Five
(Pty)
Ltd, Murray & Roberts, Concor Ltd, G
Llviero
&
Son
Building
(Pty)
Lid, GRiridch Coastal Projects (Pty) Ltd, Hochtief Construction
AG,
Dura
Soletanche-Bachy
(Pty) Ltd,
Nlshlmatsu
Construction
Co. Ltd, Esorfranki Ltd, VNA Pilings CC, Rodlo Geotechnics (Pty) Ltd,
Diabor td, Gauteng Piling
(Pty)
Ltd,
Fairbnother
Geotechnlcal
CC,
Geomechanics CC, Wilson Bayly Holmes ~ Ovcon Ltd and other
construction firms, including Joint ventures.
3.
The Invitation to Firms in the Construction Industry to Engage in
Settlement of Contraventions of the Act
3.1.
The Commission's investigation of tha complaints, as
well
as
several other of the Commission's investigations in
the
construction
industry, led
t
h
e
Commis
si
on
to
b
elie
ve
that
ther
e
wa
s
wi
des
pread
co
llu
sio
n
in
contravention
of
section 4(1 ){b) of the Act in the construction Industry.
3.2.
Section 4(1)(b) provides :
"4.
Restrictive
horizontal
practices
prohibited
(1)
An
agreement
between,
or
concerted
practice
bv.
firms,
or
a
decision
bv
an
association
of
firms
.
is
prohibited
if
it
is
between
parties
In
a
horizontal
relationship
and if
-
(a)
It has the effect of substantially preventing, or lessening,
competition
in
a
market, unless a party to the agreement,
concerted
practice,
or
decision
can
prove
that
any
technological,
efficiency
or other pro-competition gain resulting from
it
outweighs
that
effect; or
(b)
it
Involves anv of the following restrictive horizontal practices
:
(i)
Directly or Indirectly fixing
a
purchase
or
selling
price or
any
other trading condition;
(ii)
Dividing
markets
by allocating customers, suppliers, territories, or specific typos
of
goods
or
services;
or
(iii)
Collusive
tendering”
3.3.
The collusive conduct engaged in
t
in the context of the Invitation and this
Consent
Agreement, Included collusive tendering or “bid-rigging
0
.
Collusive tendering involves particular conduct
by
firms
whereby
as
competitors
they collude regarding
a
tender
resulting
in
the
tender
process being distorted. The bid prices and the bid
submissions
by
these
competitors
as
well
as
the outcome of the tender
process
Is
not
the
result of competition on the merits. “Cover pricing” in
this
context
occurs when conspiring firms agree that one or more of them will
submit
a
bid
that
Is not intended to win the contract. The agreement is
reached
in
such a way that among the
colluding
firms,
one firm
wishes
to
win the tender and the others agree to submit non-competitive
bids
with
prices that
would
be
higher than the
bid
of
the designated winner, or the price
will
be
too
high to
be
accepted,
or the
bid
contains special
terms
that are known to be
unacceptable
to
the
client.
Collusive tendering therefore
applies
to
agreements
or
concerted
practices
which
have as their object or effect the prevention, lessening, restriction
and distortion of competition in South Africa.
3.4.
In terms
of
section
2 of the Act, two of the key
objects
of
the Act are to promote the efficiency, adaptability
and
development
of
the
economy,
and to provide consumers with competitive
prices
and
product choices, Section 217 of the
Constitution,
1996
calls
for
a
procurement
or tender system which Is fair, equitable, transparent, competitive
and cost- effective.
3.5.
In addition,
the
Commission
is
required in terms of section 21(1)
of
the
Act, inter alia,
to
implement
measures to increase market transparency, to Investigate and evaluate
alleged contraventions of Chapter 2 of the Act,
and to negotiate and
conclude
consent
agreements
in
terms
of section
49D
for
confirmation as an order of the Competition Tribunal in terms of
section
58(1
)(b)
of
the Act
3.6.
Therefore, In the Interest of transparency, efficiency, disrupting
cartels and
incentlvising
competitive
behaviour in
the
construction
industry and a cost-effective, comprehensive and
speedy
resolution
of the investigations referred to above, the Commission decided to
fast track these investigations and their resolution
by
Inviting
firms that were involved in
collusive
tendering
in the form of bid-rigging of projects in the construction industry,
to apply to engage in settlement discussions on the
terms set out
hereunder,
3.7.
On 1 February
2011
the
Commission
Issued a media
release
about ths
Invitation
and
published
the same on its website. In the Invitation, hereto attached and
marked Annexure A, the
Commission
offered firms the opportunity to settle alleged contraventions of the
Act, if
they
would:
3.7.1.
submit an application in terms of PART 2 of the
Invitation;
3.7.2.
agree to pay an administrative penalty or
penalties
determined
by the Commission as envisaged
in
paragraph
10.2 read with paragraphs 19-28 of the Invitation; and
3.7.2.
comply
with
the requirements of the settlement process as set out in PART
1
and
PART
3
of
the
invitation.
3.8.
This agreement sets out the detail of the non-prescribed prohibited
practices
only, In relation
to
which WBHO has not
been
granted
conditional
immunity in
terms
of
the Commission’s CLP,
which
the respondent
is
liable
to
settle
regard
being had to the
provisions
of
section 67(2) of the Act The penalty Is calculated taking into
account only
the
said
non~prescribed
prohibited
practices,
which WBHO has not been granted conditional immunity in
terms
of
the
Commission’s
CLP.
3.9.
Applying
firms
ware
required
to
inter
aim
provide the
Commission
with
truthful
and
timely disclosure of information and documents relating to the
prohibited practices and to provide full and expeditious co-operation

to the Commission concerning the prohibited practices.
3.10.
An applying firm
could
request
the Commission
to
consider
Its application In terms of the Invitation as an application for a
marker or as an application for immunity under the CLP.
Firms
could
also apply for
a
marker
or for immunity under
the
CLP
before
making an
application
in
terms
of the invitation.
3.11.
The deadline to apply for a settlement In terms of the
invitation
was
12h00 on
Friday
15
April 2011.
4.
Applications by WBHO
4.1.
WBHO
applied
for leniency and Settlement in terms of the Invitation. WBHO is
involved in
building
construction,
civil engineering, roads and
earthworks.
4.2.
WBHO applied on 15 April
2Q11
and
disclosed forty-five (45) prohibited practices. Twenty-three
(23)
of
these
are prescribed
practices
and
twenty-two (22) are norv-prescribed
prohibited
practices.
4.3.
Out of the twenty-two
(22)
non-prescribed
prohibited practices, WBHO
is
first
to apply
for
eleven
(11) non-prescribed prohibited practices and
has
been
granted
conditional
immunity by the
Commission
in
relation to these 11 non-prescribed prohibited practices.
4.4.
In
respect
of
the eleven (11) (i.e. 22 less 11) non-prescribed prohibited practices
where WBHO
Is
not
first, ten (10) non-prescribed (9 projects and 1 meeting)
prohibited
practices
are
in
the
Civil Engineering subsector, however, WBHO
Is
settling
nine
(9)
projects,
with the
exclusion
of
the 2010 FIFA
World
Cup
Stadia
meeting, which
WBHO
is
of
the view Is not a contravention of the Competition Act, One (1)
non­prescribed prohibited practice Is in
the
General
Building
subsector.
Furthermore,
WBHO is
Implicated
in
five
(5)
nan-prescribed
prohibited practices which it did not
disclose,
WBHO
has agreed
to
settle
one (1)
of
these, which
relates
to
General Building subsector. The other 4 (I.e. 5 less
1)
non-prescrlbed
prohibited
practices
are
not part of this settlement as WBHO has not agreed to settle these.
4.5.
The
eleven (11) non-prescrlbed prohibited practices
or
contraventions
by WBHO of section
4(1)(b)(Iii)
of
the Act
which
are
the subject
of
this
Consent
Agreement are set out
below.
5.
Disclosed
Projects
5.1.
Green
Point
Stadium
2A
(Tender
no, 1
24Q/2006/07)
WBHO
reached an agreement with Group Five on or about 13 December 2006 in
respect of the Green Point Stadium In Cape Town,
in
that
WBHO provided a cover price to Group Five, on the basis that Group
Five would not win
the
tender.
This
conduct
Is
collusive
tendering
In
contravention
of section
4(1)(b)(iii)
of
the Act.
The
project
was
for the construction of Green Point Stadium including its surrounding
Infrastructure. The client for
the
project
was
City
of Cape Town. The tender was awarded to the Murray & Roberts,
WBHO Joint
venture
and the project was completed
In
December
2009.
5.2.
Dwaalboom Expansion
Project
Kiln
Line
2 (Tender no. DB/G9)
WBHO
reached
an
agreement with
Condor,
which
was
in
joint
venture
with
Stefan
utti fConcor/Stefanutti
JV
8
),
on
or
about
September
2006
in that they agreed on
a
cover
price
in
relation
to this
project,
in
terms
of
the cover price agreement Concor provided
WBHO
with
a cover
price
in
order
tor WBHO
not
to
win
the tender. This conduct is
collusive
tendering
in contravention of section 4(1)(b)(iii) of the Act
This
project was for the
civil
works
for the Dwaalboom expansion for Pretoria
Portland
Cement
Company (Pty) Ltd. The client for the project was PPC Cement The
Concor/Stefanutti JV was awarded
the
tender.
The project was
completed
In
August 2009.
5.3.
N17 Link Road to Soweto (Tender no. 047/2005)
WBHO
reached an agreement with Group
Five
on
or
about
2000
in
respect of the N17 Link Road to Soweto project, in that WBHO
agreed
with
Group
Five
that
they would add a loser's fee to their
respective
bid
prices
and
the
winning bidder would pay the fee to the
losing
bidder.
According
to WBHO
the
latter
agreement was not
implemented.
This
conduct Is collusive tendering in contravention of section
4(l)(b)(lii)
of
the
Act.
The
project was
for
road
works for the design
and
construction
of the N17 link road to Soweto, The client for the project
was
the
Johannesburg Roads Agency. The tender was awarded
to
Group
Five and
the
project
was
completed
in
early
2010.
5.4.
Gauteng Freeway Improvement Project (“GF1P”) - Packaga A
(Tender no. NRA N1 001200-2008/1), Package B (Tender no.
NRA N1
001--2OO-2OO8/2)7-Package
E-(Tender-no. NRA N1 003-120-2OO8/1)
WBHO
reached
an
agreement
with
Concor and Stefanutti (whilst Concor and Stefanutti were in
joint
venture)
on or about
2006
in
respect
of
the
Gauteng
Freeway
Improvement
project (“GRP) which comprised of three packages, namely;
Package A, B and E, in terms of which, the parties
agreed
to
allocate the various packages amongst themselves, and
to
exchange
cover prices
in
this
context. According to WBHO the
agreement
was
not implemented. This conduct is collusive tendering in contravention
of section 4(1)(b)(ill)
of
th©
Act,
The
Project
was
for
the addition
of
lanes,
construction
of retaining walls, bridges and structure as well as
various
intersections
on the southern sections of freeways around Johannesburg. The
client
for
the
project
was
SANRAL
Package A was awarded to
Group
Five.
Package
B was awarded to WBHO. Package E was awarded to
Group
Five.
The
projects
for Package A, B and E were completed
In
2010.
5.5.
Durban International Convention Centre (Tender No. CSA 0936)
WBHO
in joint venture with Group Five reached an agreement
with
Grinaker
LTA
and
Stefanutti
on or about 29 October
2004
in
respect of the international
Convention
Centre,
Durban
ICC
(2007)
project
In
terms of ths agreement, Grinaker-LTA (which was in a joint venture
with
SIvukife),
reached
a cover price and loser’s fee agreement with
Group
Five,
WBHO
and Stefanutti. Group Five and WBHO were in a joint venture known as
Masinya JV and Stefanutti was in a joint venture with
Fikffe
Construction known as Stocks
Flkile
C&R
JV.
Group
Five acting on behalf of the Masinya JV requested
a
cover
price from Grinaker-LTA to enable Grinaker LTA to win the tender. It
was
agreed
between
the
joint
ventures
that a laser's fee should be included in the tender price as
part
of
a
so-called
“compensation
payment" to the losing bidders. The tender was awarded to
Masinya JV.
This
conduct
is
collusive tendering In contravention of
section
4(1)(b)(III)
of
the Act The
project
was
for the construction of the Durban International
Convention Centre. The Client was the City of Durban. The
tender
was awarded to Masinya JV, namely WBHO, Group Five and Masinya
Empowerment Group and
the
project
was completed in July 2008.
5.6.
Upgrading of 14 km of N2 between Tsitslkama and Witelsbos (Tender no.
NRA
ND02«090-2000/IC-CD
WBHO
reached
an
agreement
with
Concor
on
or about 2006
in
respect
of the upgrading of 14 km of the N2
between
Tsltsikama
and Witelsbos,
in
that
Concor
provided
WBHO
with
a
cover
price
in order for WBHO
not
to
win
the
tender.
This
conduct
is
collusive tendering in contravention of
section
4(1 )(b)(m) of the Act.
The
project
was for the
upgrading
of
the N2 between Tsftsfkama
and
Witelsbos,
The client for the project was SANRAL The tender
was
awarded
to
Concor
and
the project was
completed
In
February
2010.
5.7.
Rehabilitation of
N12
between
Beeftnaster and Bloemhof (Tender no. N
012-120-2006/1)
WBHO
reached an agreement with Concor
on
or
about
2006
in
respect of rehabilitation of N12
between
Beef master
and
Bloemhof, in that Concor provided WBHO with a cover price in order
for
WBHO
not
to win the tender.
This
conduct
is collusive tendering
in
contravention
of section 4(1 )(b)(iil) of the Act
The
project
was
for
the rehabilitation of the N12 between
Beefmaster
and
Bloemhof.
The
client
for
the project was SANRAL. The tender
was
awarded
to Concor and the project was completed in
October
2009.
5.8.
PPRust
North Expansion Infrastructure Project (Tender no.
PO7/3003/O0)
WBHO
reached
an
agreement with Grinaker-LTA an or about 2007 in respect of the PPRust
North
Expansion
Infrastructure
project, in that
WBHO-provlded
Grinaker LTA with a cover price, in order that Grinaker
LTA
would
not win
the
tender.
This conduct
fe
collusive tendering
in
contravention of
section
4(1)(b)p)
of
the Act.
The
project
was for the construction of terraces, as
well
as
infrastructure and dvr!
building
work
to
workshops as well as change houses.
The
diant
for
the project
was
Anglo
Platinum.
5.9.
Tamboti at Simbithi Estates (Tender no, D680)
WBHO
reached an
agreement
with
G
Liviero, Group Five, Grinaker LTA and Norvo Construction on or about
May 2004, In respect of the Tamboti projects at
Simbithi
Estates,
In
that
WBHO
agreed
with
these firms to add a loser's fee to their respective
bid
prices.
This conduct
is
coiiusive
tendering in contravention
of
section 4(1)(b)(iil) of the Act
The
project was for the construction of 56 residential units at Simbithi
Estates, The client for the project
was
Big
Cedar
Trading
(Ply)
Ltd.
The
tender
was
awarded
to G LMera and the project
was
completed
in November 2008. it was alleged that the last payment of the loser's
fee
was
in November 2G08,
5.10.
Tati Actlvox Main Civils (Tender no. 05140-HPR-1000-H01-P02-001)
WBHO
reached
an
agreement with Grinaker LTA,
which
was
In
a joint
Ventura
with Stefanutti, on or about 2006 In respect of the Tati ActiveX
Project, in that, WBHO received a cover price from Grinaker-LTA
in
order
for
WBHO
not
to win the tender. This conduct is
collusive
tendering
in contravention of section
4(1)(b)fw)
of
the Act.
The
project
was
for the main
dvif
works
at
Tati
Actfvox
In
Botswana.
The
dtent
far
the
project was Lion Ore South Africa
(Pty)
Ltd.
The
tender
was
awarded
to
Grinaker-LTA/Stefanutti joint venture and the project
was
completed
in September 2008.
6.
Non-disclosed project
6.1.
Pansy Cove Block of Flats
WBHO
reached an agreement with Grinaker-LTA on
or
about
August 2004 in respect of the
Pansy
Cove
project
In
Mossel
Bay
In terms
of
the agreement, it is alleged by Grinaker-LTA
that
it
provided a cover price to
WBHO.
This
is collusive tendering
In
contravention
of
section 4(1)(b)(lii) of the Act
The
project was for
the
construction
of a block of flats
in
Mossel
Bay. The client
was
Leonpont
270 Properties (Pty) Ltd, The
tender
was
awarded
to Grinaker-LTA. Grinaker-LTA
alleges
that
the
project
was
completed
in
May
2007^
7.
Admissions
WBHO
admits that it entered into the agreements detailed in paragraphs 5
and 6 above with its competitors in contravention of section
4(1
)(b)
of
the Act.
8.
Co-operation
In
so
far
as
the Commission Is aware, in compliance with the requirements as set
out
in
the Invitation, WBHO;
8.1.
has
provided
the
Commission
with
information
and
documents
in its possession or under its control,
relating
to
the prohibited practices.
8.2.
Has
ceased
to
engage
In,
and
wUl
not
in the future engage in, any form of prohibited practice;
8.3.
has confirmed that
it
has
not
destroyed,
falsified
or
concealed
i
nformation,
evidence and documents relating to the prohibited practices;
8.4.
has confirmed that ft has not misrepresented or made
a
wilful
or
negligent
misrepresentation
concerning
the
material facts of any prohibited practice or otherwise acted
dishonestly.
9.
Agreement Concerning Future conduct
9.1.
In compliance with the requirements as set
out
in the
Invitation,
WBHO
agrees
and undertakes
to
provide
the
Commission
with full
and
expeditious
co-operation
from
the
time
that
this
Consent Agreement is concluded until the subsequent proceedings in
the Competition Tribunal or the
Competition
Appeal
Court are completed. This includes, but
Is
not
limited to;
9.1.1.
to the extent that K is fn existence and has
not
yet
been provided,
providing
(further)
evidence,
written or
otherwise*
which
is
in
its
possession
or
under its control, concerning the contraventions contained in this
Consent Agreement;
9.1.2.
avail
Its
employees
and
former
employees
to
testify as witnesses for the Commission in any cases regarding the
contraventions contained
in
this
Consent
Agreement
9.2.
WBHO has developed, implemented and is monitoring a competition law
compliance
programme
incorporating
corporate governance designed to ensure that its employees,
management, directors and agents
do
not
engage in future contraventions of the Act.
in
particular,
such compliance programme will include mechanisms for the monitoring
and detection of any contravention of the Act.
9.3.
WBHO shall
submit
a copy of such
compliance
programme
to the Commission within SO days of the
date
of
confirmation
of
the
Consent Agreement as an order by the Competition Tribunal.
9.4.
WBHO shall circulate a statement summarising the contents of this
Consent Agreement to
all
management
and operational staff employed
at
WBHO
within 60 days from the
date
of
confirmation
of
this
Consent
Agreement
by the Tribunal.
9.5.
WBHO will
not
in the future
engage
in
any form of prohibited conduct will not engage in any form of
collusive tendering which will distort the outcome of tender
processes
but
undertakes
to
engage In
competitive
bidding.
10.
Administrative penalty
10.1.
Having regard to the provisions of sections 58(1Xa)$i) as read with
sections
59{1)(a),
59(2}
and
59(3)
of the Act, as weil
as
the
factors
fisted
m
paragraphs 10.2
read
together
with paragraphs 19 -
28
of
the invitation, WBHO accepts that
it
is liable
to
pay an administrative
penalty
(“penalty*),
10.2.
According to the Invitation, the
level
of
the penalty is to be set on
the
basis
of a percentage of ths annual turnover of WBHO in the relevant
subsector
in the
Republic
and its exports from the
Republic
for
the financial
year
preceding
the
date
of the Invitation.
10.3.
The meetings and
projects
which
WBHO has been found to have contravened the Act, fail under the Civil
Engineering and General Building sub-sectors.
10.4.
Accordingly,
WBHO
is
liable
for
and
has agreed to pay an administrative penalty In the sum of R311 288
311,
which
penalty
is calculated in accordance with the
Invitation.
11.
Terms of Payment
11.1.
WBHO shall pay
the
amount set out above in paragraph
9.4
to
the
Commission
in
three
instalments over
a
period
of two yea/s, the first instalment of
R
103 762 771
f
within
30 days from the date of
confirmation
of
this Consent Agreement as an order of the Tribunal,
the
second
Instalment
of
R103
762
770,12 months after the first instalment, and the third Instalment of
R103
762
770, 12 months after the
second
instalment
This
payment shall be made into the Commission's bank account details
of
which are
as
follows:
Bank
name : ABSA Bank
Branch
Name : Pretoria
Account
Holder : Competition
Commission
Fees
Account
Account
Number :
4050778578
Account
type :
Current
Account
Branch
Code
: 323
345
11.3.
The
penalty
will
be
paid
over
by
the Commission to the National Revenue Fund in accordance
with
section 59(4)
of
the
Act
12.
Full and Final Settlement
This
agreement
Is
entered
into in
full
and
final settlement of the specific conduct listed
in
paragraphs
5.1-5.10
and 6.1
of
this
Consent Agreement and,
upon
confirmation as
an
order by the Tribunal, concludes all proceedings between the
Commission
and WBHO In
respect
of
this conduct only,
Dated
and signed at SANDTON on the 23
rd
Day
of JUNE 2013
For
WBHO Construction
Dated
and signed at PRETORIA on the 24
th
Day of JUNE 2013
For
Commission
Shan
Ramburuth
Commissioner