Competition Ordinance Commences

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Competition Commission (Hong Kong)

Confidentiality granted in Hong Kong IT bid rigging case to protect complainant

Competition Tribunal says unnecessary disclosure might cause harm and deter others from stepping forward

PUBLISHED : Wednesday, 29 March, 2017, 9:33am
UPDATED : Wednesday, 29 March, 2017, 1:19pm

Investigators have succeeded in their bid to withhold information on tender prices and the identities of individuals in antitrust proceedings against the first batch of firms accused of breaching Hong Kong’s competition law.

Competition Tribunal president Godfrey Lam Wan-ho allowed the confidentiality on Tuesday as he found that unnecessary disclosure might deter potential complainants from stepping forward.

In its first legal action taken since the competition law came into effect in Hong Kong in December 2015, the Competition Commission took the five information technology companies to the tribunal for alleged bid rigging.

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The case involves a tender issued by social services organisation, the Hong Kong Young Women’s Christian Association (YWCA), in July last year for the installation of a new server system based on technology by Nutanix Hong Kong Limited.

The YWCA received bids from four IT companies – BT Hong Kong, which is the Hong Kong office of the British telecoms giant BT, SiS International, Innovix Distribution and Tech-21 Systems.

The Competition Commission is alleging that all five companies – including Nutanix Hong Kong – were involved in bid rigging.

The antitrust regulator applied to the tribunal last week for confidential treatment of the case regarding three information categories – the prices submitted in the tenders, the identities of the individuals employed or formerly employed by YWCA and the five companies, and the identity of the complainant.

Having considered the circumstances, Lam accepted that it would be appropriate to grant the confidentiality treatment at this stage.

“The tender prices are commercial information of the [five companies] not generally available in the public domain,” the tribunal president stated in a decision handed down on Tuesday.

He said the current and former employees named were not parties to the proceedings and that disclosure of their identities might cause them “unnecessary harm”.

“The identity of the complainant is of little significance to these proceedings and unnecessary disclosure may become a disincentive for potential complainants,” Lam added.