A Western Cape medical equipment supplier has been fined R50 000 for allegedly colluding on a provincial Health Department tender and has been ordered to implement a competition law compliance programme. The tender related to the supply of diagnostic sets to hospitals and health institutions under the Department’s control (clinicians use diagnostic sets to examine patients’ eyes, ears, noses and throats).
 
This forms part of the terms of a consent agreement concluded between the Competition Commission (“the Commission”) and M Meyer Surgical Sales CC t/a Intermed (“Intermed”). The Tribunal has confirmed the consent agreement as an order.
 
In addition to agreeing to pay the fine and to implement a competition law compliance programme, Intermed has undertaken to refrain from engaging in any anti-competitive conduct in contravention of the Competition Act (“the Act”) in future.
 
Although Intermed has agreed to the terms of the consent agreement, it does not admit that it contravened the Act, as alleged by the Commission. The Commission, on the other hand, has agreed to enter into the consent agreement with Intermed without an admission of liability by Intermed, based on a combination of, amongst others, the following factors:
 

Intermed is a first-time offender and has never contravened the Act before;

It is a small firm;

It did not actually win the tender in question;

The tender was small i.e., estimated at R1 000 000 for three years; and

It has fully cooperated with the Commission concerning this matter.

 
 Case background
 
In September 2019, the Commission received a complaint from the Department of Health Western Cape. It had alleged that Intermed and BMS Medical CC (“BMS”) colluded, as competitors, when tendering. There were similarities in the tender documents which led the Department to believe that Intermed and BMS had colluded with each other.
 
The Commission’s investigation found that around June 2018, Intermed and BMS had indeed assisted each other when completing their tender documents. The Commission concluded that this conduct amounted to collusive tendering in contravention of section 4(1)(b)(iii) of the Act. Intermed denied that it acted in contravention of the Act.

 

Issued by Gillian de Gouveia, Communications Officer on behalf of the Competition Tribunaai