The Competition Tribunal last week con- firmed the last two settlement agreements between the Competition Commission and the construction firms that had admitted to collusive tendering in contravention of the Competition Act.

The tribunal confirmed a R306.58-million settlement agreement between the commission and Aveng, as well as the R3.55-million settlement agreement between the commission and Guiricich Bros Construction. This followed the earlier confirmation of 13 of the settlement agreements with Basil Read, Esorfranki, G Liviero, Haw & Inglis, Hochtief, Murray & Roberts, Norvo, Raubex, Rumdel, Stefanutti Stocks, Tubular Technical Con-struction, Vlaming and Wilson Bayly Holmes-Ovcon (WBHO).

On July 17 and 18, the tribunal heard the settlement agreements between the commission and the construction firms, which, in June, agreed to pay penalties totalling a collective R1.46-billion for collusive tendering in contravention of the Competition Act.

In terms of the Act, the tribunal must confirm a settlement agreement between the commission and a respondent in order for the settlement to be legally enforceable.

Fines ranged from R155 850 for Esorfranki to over R300-million for Aveng, Murray & Roberts, Stefanutti and WBHO. The fines were agreed under the commission’s Construction Fast-Track Settlement Process, which was launched in February 2011. The commission found more than 300 cases of bid rigging related to projects concluded after 2006.

WBHO CEO Louwtjie Nel said last week that the company accepted responsibility for its actions with regard to collusive tendering, but emphasised that this was something of the past.

“The last contravention took place five years ago. WBHO has engaged in competition com- pliance training and we are confident that contraventions will not be repeated,” he stated, adding that a self-certification system had also been put in place to rid the firm of uncompetitive behaviour.

He admitted that ‘loser fees’ for firms that agreed to submit bids that would allow the firm to win a tender had been paid in three of the eleven disclosed instances, including the N17 link and the Durban International Convention Centre.

Nel said the fees paid had slipped under the radar because “it was a busy time, with a lot of payments made”.

Stefanutti Stocks CFO Dermot Quinn noted that the firm inherited eight contraventions from Stocks & Stocks Construction, which it acquired in 2008, while admitting that R50 000 in ‘loser fees’ had been paid between 2006 and 2011.

Quinn said the firm had engaged with the National Prosecuting Authority, whose investigation was ongoing, and that the board, there- fore, felt it was not appropriate to take a decision regarding treatment of those involved.

In his statement to the tribunal regarding the confirmation of the collective fine, Basil Read deputy CEO Donny Gouveia said the group wanted to close “this dreadful chapter in our history”.

Meanwhile, the tribunal dismissed appli- cations by the South African Local Govern- ment Association (Salga) and the Gauteng provincial government to intervene in the hearings of the settlement agreements.

Salga and the Gauteng provincial government’s legal representative, Ngcebetsha Madlanga, put forward that his clients had marked interests in the case and were seeking recognition as participants in relation to the settlement agreement between the commission and Basil Read.

Salga was also seeking permission to make representations in relation to, among others, the appropriateness of the administrative fine of R94.94-million that Basil Read agreed to pay.

Setting out Salga’s interest in the hearing proceedings, the association’s CEO, Lance Joel, indicated in his affidavit that organised local government played a central role in developmental service delivery.

Joel stated that “the prohibited and unlawful conduct” by Basil Read had inhibited optimal use of much-needed public funds, as it obstructed the benefits that accrued from a competitive market.

The Gauteng provincial government and Salga further sought access to the records of the commission’s investigations, which had been submitted to the tribunal, while the provincial government called on the tribunal not to confirm the settlement agreement.