1. Powerpoint Templates The fight against bid rigging- NACC experience Bridget Dundee Dar es Salaam, Tanzania, 2013

2. Introduction Background Enforcement Commissions approach Current investigation Concurrent jurisdiction and collaboration Advocacy

3. Background Competition Act, 2 of 2003( “Act”) The Act is enforced by the Namibian Competition Commission (“Commission”) and the High Court of Namibia (“High Court”). The Act regulates prohibited practices and specifically prohibits certain horizontal restrictive practices (unlawful conduct between competitors). The legislation confers broad investigative powers on the Commission

4. Enforcement Investigating cases following complaints from the public or initiations by the Secretary to the Commission investigative powers to obtain evidence: – Summons – Search and seizure (raids) Corporate Leniency Policy – Not yet operational- Commission policy for review and approval with Minister of Trade. – Administrative penalty of up to 10% of a firm’s annual turnover Civil damages

5. Collusive tendering S 23 (1) Competition Act 2,2003: Agreements between, or concerted practice, by, undertakings, or decisions by associations of undertakings, are prohibited if it is between parties in a horizontal relationship and if – (a)…..; or (b) S 23 (3) … if it involves any of the following restrictive horizontal practices: directly or indirectly fixing a purchase or selling price or any other trading condition; dividing markets by allocating customers, suppliers, areas, or specific types of goods or services; or (c) involves collusive tendering

6. Current investigation Alleged collusion between construction companies relating to a tender for road construction work. The complainant alleged that there were several misrepresentations made in the tender filing and that there was collusion in contravention of the Act and perhaps even tender fraud. Complainant alleges that the tenders submitted were all completed by the same person, and all companies involved tendered to complete the work at fairly similar prices. The complainant has already blacklisted the firms accused of collusion. Commission decided to investigate the complaint in 2013.

7. Decision to investigate Suspicious Indicators( circumstantial evidence) The Commission decided to investigate the complaint based on circumstantial evidence for which no other explanation could be identified save for the direct cooperation between the involved bidders. There is some indication of a physical alteration of bids, particularly at the last minute. The documentation submitted by the companies comprised certain identical documents, specific typographic errors were repeated by companies; Bids of all companies are very close ( possibly an indicator that bidders knew each others' prices); There is physical evidence of collusion, different companies submitting bids with the same handwriting.

8. NaCC Act provides for collaboration with various institutions in order to co- ordinate and harmonise jurisdiciton over competition matters Corruption vs bid rigging-concurrent jurisdiction Anti corruption Commission NACC Mandated by Anti Corruption Act 8 of 2003 Mandated by Competition Act 2,2003 Prevention and punishment of corruption in Namibia. Prevention and punishment of corruption in Namibia. Tender rigging is specifically addressed in Chapter 4 of the ACC Act. Tender rigging is specifically addressed in Chapter 4 of the ACC Act. Concurrent Jurisdiction and collaboration MOU between ACC and NACC cooperate against bid rigging and collusive tendering MOU between ACC and NACC cooperate against bid rigging and collusive tendering To safeguard and promote competition in the Namibian market

9. Advocacy Commission continues to reinforce its strategic partnerships with public authorities in view of raising awareness, detection and prevention, vis-a – vis collusive tendering Memorandum of Understanding- Enhance co-operation between NACC, ACC, government procurement agencies Long term project aim at involving educators and professions expanding their responsibilities in terms of inculcating ethical behavior in their members Competition week, September 2013- collusive tendering workshop for public administration and procurement agencies The Commission intervention will target areas of raising awareness towards bid rigging of public officers and public authorities, disseminating tools for identifying potential red flags and sanctioning anti competitive practices.

10. Thank you Bridget Dundee Tel: + 264 (0) 61 224622 Fax: + 264 (0) 61 409109 E-mail: bridget.dundee@nacc.com.nabridget.dundee@nacc.com.na Website: www.nacc.com.nawww.nacc.com.na