Competition and Consumer Act. Australia

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      (iii) 2 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or

      (iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or

      (v) 2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding.

      Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a roster for the supply of after-hours medical services if the roster does not prevent, restrict or limit the supply of services.

      Note 2: The purpose condition can be satisfied when a provision is considered with related provisions — see subsection (9).

      Note 3: Party has an extended meaning — see section 44ZZRC.

      Competition condition

      (4) The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:

      (a) are or are likely to be; or

      (b) but for any contract, arrangement or understanding, would be or would be likely to be;

      in competition with each other in relation to:

      (c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or likely supply, of goods or services — the supply of those goods or services; or

      (d) if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services — the acquisition of those goods or services; or

      (e) if paragraph (2)(e) or (f) applies in relation to a re-supply, or likely re-supply, of goods or services — the supply of those goods or services to that re-supplier; or

      (f) if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods — the production of those goods; or

      (g) if subparagraph (3)(a)(ii) applies in relation to preventing, restricting or limiting the capacity, or likely capacity, to supply services — the supply of those services; or

      (h) if subparagraph (3)(a)(iii) applies in relation to preventing, restricting or limiting the supply, or likely supply, of goods or services — the supply of those goods or services; or

      (i) if paragraph (3)(c) applies in relation to a supply of goods or services — the supply of those goods or services; or

      (j) if paragraph (3)(c) applies in relation to an acquisition of goods or services — the acquisition of those goods or services.

      Note: Party has an extended meaning — see section 44ZZRC.

      Immaterial whether identities of persons can be ascertained

      (5) It is immaterial whether the identities of the persons referred to in paragraph (2)(e) or (f) or subparagraph (3)(a)(iii), (b)(i) or (ii) can be ascertained.

      Recommending prices etc.

      (6) For the purposes of this Division, a provision of a contract, arrangement or understanding is not taken:

      (a) to have the purpose mentioned in subsection (2); or

      (b) to have, or be likely to have, the effect mentioned in subsection (2);

      by reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit.

      Immaterial whether particular circumstances or particular conditions

      (7) It is immaterial whether:

      (a) for the purposes of subsection (2), subparagraph (3)(a)(iii) and paragraphs (3)(b) and (c) — a supply or acquisition happens, or a likely supply or likely acquisition is to happen, in particular circumstances or on particular conditions; and

      (b) for the purposes of subparagraph (3)(a)(i) — the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and

      (c) for the purposes of subparagraph (3)(a)(ii) — the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions.

      Considering related provisions — purpose/effect condition

      (8) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions:

      (a) the other provisions of the contract, arrangement or understanding;

      (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first-mentioned contract, arrangement or understanding;

      has that purpose, or has or is likely to have that effect.

      Considering related provisions — purpose condition

      (9) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose mentioned in a paragraph of subsection (3) if the provision, when considered together with any or all of the following provisions:

      (a) the other provisions of the contract, arrangement or understanding;

      (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first-mentioned contract, arrangement or understanding;

      has that purpose.

      Purpose/effect of a provision

      (10) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of:

      (a) the form of the provision; or

      (b) the form of the contract, arrangement or understanding; or

      (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties.

      Purpose of a provision

      (11) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose mentioned in a paragraph of subsection (3) by reason only of:

      (a) the form of the provision; or

      (b) the form of the contract, arrangement or understanding; or

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