The Administrative Council of Economic Defense (Cade), at its 94th session, on November 9th, judged a cartel accusation in special food biddings. The collusion had allegedly occurred between Support and its distributors, within the public bids of Ceará and Santa Catarina States, to provide food products to people who are unable to digest certain amino acids, such as phenylalanine. The Tribunal, partially following the General Superintendence (SG)’s opinion, closed the proceeding on both the predatory pricing and cartel accusations concerning Support, due to the lack of evidence and economic rationality in its alleged conduct, since the company would benefit regardless of which distributor wins the lots. The other defendants, the distributors within the corresponding States, were unanimously condemned for the practice of cartel in bids. The antitrust authority understood that there was evidence of communication between them, such as documents with the same formatting, jointly submitted proposals and same prices, which were aggravated by the verification of family ties. There was divergence between the Reporting Commissioner, Alexandre Cordeiro, and João Paulo de Resende, on penalty dosimetry. Commissioner João Paulo de Resende suggested that only the bidding lots values that had an actual similarity of prices be added, with an estimated overpricing rate of 20%, so as to calculate fine values that could reflect a real intention to defraud the public bids. Commissioner Alexandre Cordeiro, on the other hand, suggested that the penalty be based on the sales derived from the corresponding economic activity in 2009, with the application of a 13% rate. His vote was fully followed by the other Commissioners.
2016/11/18
