COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case No: 016972
In the matter between:
The Competition Commission	Applicant
and
Guiricich Bros Construction (Pty) Ltd	Respondent
Panel:	N Manoim (Presiding Member), Y Carrim	
	(Tribunal Member) and T Madima (Tribunal	
	Member)	
Heard on:	17 July 2013	
Decided on:	23 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” and the addendum thereto marked “B.
Presiding Member
N Manoim
Concurring: Y Carrim and T Madima

CC Case No:2009Feb4279/2009Sep4641
Application for confirmation of a consent agreement
in the matter between:
THE COMPETITION COMMISSION	Applicant
and
GIURICICH BROS CONSTRUCTION (PTY) LTD	Respondent

PREAMBLE

1. Definitions
For the purposes of this consent agreement the following definitions shall apply:

1.11. 

2. The Complaints

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 the Complaints, as we!! as several other of the Commission’s investigations in the construction industry, led the Commission to believe that there was widespread collusion in contravention of section 4(15(b}(iii) of the Act in the construction industry.
3.2. Section 4(1 )(b) provides-
"4. Restrictive horizontal practices prohibited 

(b) it involves any 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 types of goods or services; or

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 of the Republic of South Africa, 1996 calls for a procurement or tender system which is fair, equitable, transparent, competitive and cost- effective.

3.6. Therefore, in the interest of transparency, efficiency, disrupting cartels and incenftvisrng competitive behavior 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 on the terms set out in the Invitation.

3.7.1. submit an application in terms of PART 2 of the Invitation;

3.7.2. 
3.7.3. comply with the requirements of the settlement process as set out in PART 1 and PART 3 of the Invitation.

3.11. The deadline to apply for a settlement in terms of the Invitation was 12h00 on 15 April 2011.

4. Applications by Guiricich Bros

4.3. Giuricich Bros is further implicated in 1 non-prescribed prohibited practice (1 project) in the general building subsector which it did not disclose.
4.4. The prohibited practice or contravention by Guiriclch Bros of section 4(1 )(b)(iii) of the Act which is the subject of this Consent Agreement, is set out below.

5. Disclosed Project
The Millwood Village Residential Project (Tander No: NPK0366PBC)
Giuricich Bros reached agreement with Vlaming (Pty) Ltd on or about August 2005, in that they agreed on a cover price in respect of this project. In terms of the agreement, Vlaming provided a cover price to Giuricich Bros to enable Vlaming to win the tender. This conduct is collusive tendering in contravention of section 4{1)(b)(iii) of the Act.

6. Admission
Giuricich Bros admits that it was involved in collusive conduct in contravention of section 4{1)(b)(iii) of the Act in that it tendered collusiveiy in respect of the practices described in paragraph 5 above.
7. Co-operation
In so far as the Commission is aware and in compliance with the requirements as set out in the Invitation, Giuricich Bros:

7.3. has provided a written undertaking that it has immediately ceased to engage in, and will not in the future engage in, any form of prohibited practice;
7.4. has confirmed that it has not destroyed, falsified or concealed information, evidence and documents relating to the prohibited practices;
7.5. has confirmed that it has not misrepresented or made a wilful or negligent misrepresentation concerning the material facts of any prohibited practice or otherwise acted dishonestly.
8. Agreement Concerning Future Conduct 
8.1. In compliance with the requirements as set out in the Invitation, Giuricich Bros agrees and undertakes to provide the Commission with full and expeditious cooperation 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;
8.1.1. to the extent that it is in 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;
8.1.2. testifying as a witness for the Commission in any cases regarding the contraventions contained in this Consent Agreement

8.2.1. a Competition policy to be drafted and implemented by Giuricich Bros;
8.2.2. provide for specific training on competition law aspects particularly relevant to Giuricich Bros;
8.2.3. ensure that such training will be made available to ail new employees joining Giuricich Bros. Furthermore, Giuricich Bros will update such training annually.
8.3. Giuricich Bros shall submit a copy of such compliance programme to the Commission within 60 days of the date of confirmation of the Consent Agreement as an order by the Competition Tribunal; and
8.4. Giuricich Bros shall circulate a statement summarising the contents of this Consent Agreement to all management and operational staff employed at Giuricich .Bros with]n_ 60, days.,frprri the date of .confirmation of this Consent Agreement by the Tribunal. —
8.5. According to the written undertaking It has provided in compliance with the requirements as set out in the invitation, Guiricich Bros will not in the future engage in any form of prohibited conduct and will not engage in collusive tendering which will distort the outcome of tender processes but undertakes henceforth to engage in competitive bidding.

9. Administrative Penalty
9.1. Having regard to the provisions of sections 58(1)(a}(iii) as read with sections 59(1 Xa), 59(2) and 59(3) of the Act, and as envisaged in paragraph 10.2 read with paragraphs 19-28 of the Invitation, Guiricich Bros accepts that it is liable to pay an administrative penalty ("penalty").
  
9.3. The project which Guiricich Bros has been found to have contravened the Act, falls under the General Building subsector
9.4. 

10. Terms of payment
10.1. Giuricich Bros wili pay the amount set out above in paragraph 9.4 to the Commission in two equai payments, the first such payment of R1 776 284 (One Million, Seven Hundred and Seventy Six Thousand, Two Hundred and Eighty Four Rand) on or before 31 JuSy 2013 or .within 30 days from the date of confirmation of this Consent Agreement as an order of the Tribunal, whichever is the later.
10.2. Giuricich Bros will make the second payment of R1 776 284 (One Million, Seven Hundred and Seventy Six Thousand, Two Hundred and Eighty Four Rand) on or before 31 August 2014.
Bank name:	Absa Bank		
Branch name:	Pretoria	
Account holder:	Competition Commission Fees Account	
Account number:	4050778576	
Account type:	Current Account	
Brach Code:	323 345	

10.4. The penalty wili be paid over by the Commission to the National Revenue Fund in accordance with section 59(4) of the Act,

11. Full and Final Settlement
This agreement is entered into in full and final settlement of the specific conduct listed in paragraphs 5 of this Consent Agreement and, upon confirmation as an order by the Tribunal, concludes ail proceedings between the Commission and Giuricich Bros in respect of this conduct only.

For Giuricich Bros

For the Commission
Shan Ramburuth
(Commissioner)

The parties agree that the heading of clause 5 of the consent agreement be replaced to read 5, Non disclosed project.

GIURICICH BROS CONSTRUTION (PTY) LTD AUTHORISED SIGHAT0RY

For the Commission
Shan Ramburuth
(Commissioner)