Identifying bid rigging is not easy. For example, there are forms of cooperation between potential bidders in tenders that are in fact legitimate. Collaboration based on sharing the work, whereby the parties work together in a complementary way (joining their financial, expert, technical or resource offer) to ensure a winning bid and compete together, would be lawful joint bidding. The risk of infringement arises if companies form a consortium without an objective economic justification, when they could have competed independently with a realistic chance of success.
Other reasons why identifying bid rigging is not easy include the fact that sometimes contracting authorities lack the necessary information, resources or experience to detect it; sometimes market participants are limited in number and thus viable proposals in tenders are limited, and bid-rigging is facilitated; sometimes collusion in public procurement is combined with corruption, such as bribing decision-makers in the contract authority.
The enforcement of public procurement and antitrust rules and sanctioning of infringers of these rules is therefore of utmost importance. Contracting authorities should lead the way in combatting bid rigging by organising and conducting procedures that make coordination between the participants as difficult as possible. The EC and national competition authorities are there to provide support, including by adopting relevant guidance that can help contractors combat bid rigging.
In 2021, the EC published a “Notice on tools to fight collusion in public procurement and on guidance on how to apply the related exclusion ground” (C (2021) 1631). The Notice contains guidance on how contracting authorities can detect unlawful collusion, and also focuses on the possibility to exclude bidders engaged in the manipulation of a tender and what options bidders have for “self-cleaning”. The Notice illustrates the EC’s determination to detect and prevent collusive behaviour during award procedures. The possibility of exclusion of bidders if there are sufficiently plausible indications of collusive behaviour therefore plays a major role. Companies might not be excluded, however, if they can credibly demonstrate “self-cleaning”. Practical examples and guidance on the “sufficiently plausible indications of collusive behaviour” and the appropriate measures for “self-cleaning” should be provided by the national competition authorities as well, considering the specifics of the national legislation.
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