Judgment following an appeal against a decision of the Office of Fair Trading (“OFT”) dated 21 September 2009 entitled “Bid rigging in the construction industry in England” (“the Decision”). In the Decision the OFT found that 103 undertakings had each committed between one and three infringements of the Chapter I prohibition contained in section 2 of the Competition Act 1998. The OFT imposed penalties totalling £129.2m, of which £120,018 was imposed on the Appellant for three alleged instances of cover pricing (referred to in the Decision as Infringements 188, 215 and 224). The Appellant appealed the Decision both as regards liability and penalty.
As regards Infringement 224 the Appellant submitted that the cover price supplied to another construction company was not provided by the Appellant but by a third party self-employed costs estimator, who carried out estimating work for the Appellant and a number of other companies. The Tribunal held that the question was whether, when the costs estimator provided the cover price, he did so as part of the Appellant’s “undertaking”, or whether it was in fact a discrete function carried out by the estimator other than in that capacity. In the Tribunal’s view, it was the latter. Accordingly, the Tribunal unanimously concluded that the provision of the cover price was not, as a matter of law, attributable to the Appellant.
As regards Infringements 188 and 215, the Appellant submitted that the OFT had failed to meet the burden of proof, that rests on it, to show that these infringements were in fact committed by the Appellant. Having considered all the evidence, including evidence adduced by the Appellant, the Tribunal held that the OFT had not established on the balance of probabilities that the Appellant had committed either of the alleged infringements.
Accordingly, the Tribunal allowed the appeal in respect of all three infringements, and the findings of liability and penalties in respect of the infringements were set aside.
In a postscript to the judgment, the Tribunal stated that it did not consider that material contained in transcripts of interview – even if reviewed and attested by the interviewee – was a satisfactory means of seeking to evidence alleged infringements by another company. Even if the OFT has not obtained witness statements in order to fortify its own decision-making process, once it becomes clear that there is a material dispute as to the facts on which its decision was based, the OFT should consider to what extent such witness statements are necessary or desirable in order to support those facts in an appeal, subject always to the provisions of rule 22 of the Competition Appeal Tribunal Rules 2003 (SI 2003 No. 1372).
