AG Wathelet proposes creation of excessive presumption of liability for third party infringement of Art 101 TFEU (C-542/14)

In his Opinion of 3 December 2015 in case VM Remonts and Others, C-542/14, EU:C:2015:797 (not yet available in English), Advocate General Wathelet advised the Court of Justice of the European Union (CJEU) on issues concerning the subjective elements (ie mens rea-like requirements) of the prohibition of anticompetitive behaviour in Art 101(1) TFEU. 

In particular, the case addresses issues concerning the imputability of anticompetitive practices in which a third party services provider is engaged to the 'client' undertaking that hired those services (ie how to make the 'client' undertaking liable for the anticompetitive behaviour of one of its services providers). In my view, AG Wathelet's proposal is clearly excessive (see critical assessment below) and deserves closer inspection. 

The case is quite convoluted because it concerns the imputability of a bid rigging offence to a supplying company that engaged a consultant to help it formulate a bid in a tender for a public contract. After the fact, it became apparent that the consultancy engaged in collusion with other tenderers in the same bid. The question was, thus, to what extent the bidder should be liable for the collusion that resulted from the allegedly independent activity of the consultancy (third party services supplier) and, in any case, what level of proof of anticompetitive intent would be necessary to impose liability on the 'client' undertaking.

In AG Wathelet's Opinion, it is not necessary to prove a personal behavior of any corporate officer of the 'client' undertaking, or his knowledge or consent to the behavior of the external services provider that also acted on behalf of other participants in a possibly prohibited agreement. AG Wathelet proposes to create a presumption of (vicarious?) liability, so that it is incumbent upon the 'client' undertaking to adduce sufficiently convincing evidence to rebut that presumption and escape liability. 

In particular, AG Wathelet considers that the necessary proof concerns (i) evidence relating to the fact that the third party (services provider) has acted outside the scope of the functions that had been entrusted to it, (ii) evidence regarding the precautionary measures taken by the 'client' undertaking at the time of designation of the third party and during the monitoring of the implementation of the functions in question, and (iii) evidence regarding the 'client' undertaking's conduct upon becoming aware of prohibited behavior.

AG Wathelet's VM Remonts Opinion follows the expansive/strict interpretation of the subjective elements in the prohibition of Art 101(1) TFEU in recent cases such as AC-Treuhand v Commission (C-194/14 P, EU:C:2015:717, re liability of a cartel facilitator, see an interesting comment here); Schenker and Others (C-681/11, EU:C:2013:404, re reliance on third party advice, see comments here); or Kone (C-557/12, EU:C:2014:917, re extension of 'umbrella' liability for damages to third parties to a cartel, see comments here). 

This is a very relevant opinion, with potentially very significant effects commensurate to those of the presumption of liability of the parent company, which has shaken competition law enforcement in the EU for the last 5 years or so.  

Therefore, it is interesting to look at AG Wathelet's reasoning in some more detail:
60. In my view, two extreme positions must be rejected. On the one hand, the automatic imputation of responsibility to the undertaking for the actions of a third party, regardless of the degree of involvement of the undertaking, which would go against fundamental principles governing the imposition of competition law sanctions (in particular the principles of personal responsibility and legal certainty), and, on the other hand, the obligation of the competent competition authority to demonstrate convincingly that the undertaking receiving the services from the third party was aware of the criminal acts committed by the latter or had consented to them, which would create a risk of seriously undermining the effectiveness of competition law.
61. Indeed, "... the prohibition on participating in anti-competitive practices and agreements and the penalties which infringers may incur are well known, it is normal that the activities which those practices and agreements involve take place in a clandestine fashion, for meetings to be held in secret, frequently in a non-member country, and for the associated documentation to be reduced to a minimum. " Therefore, it would be too easy to "hide" behind a third party in order to go unpunished under competition law.
62. Moreover, the importance of keeping free competition allows for companies that entrust third parties with functions such as those at issue in the present case [ie public procurement consultancy services] to be required to take all possible precautions to prevent such third parties from infringing competition law, avoiding, in particular, any negligence or recklessness in the definition or in the monitoring of these functions.
63. In line with this, the solution I propose for cases such as that in the main proceedings is to establish a rebuttable (iuris tantum) presumption of liability of the undertakings for acts contrary to competition law committed by a third party whose services it has engaged and which cannot be considered its subsidiary or ancillary body. Such a presumption can maintain the balance between, on the one hand, the objective of effectively suppressing behavior contrary to the competition rules, in particular to Article 101 TFEU, and to prevent their recurrence bearing in mind that respect for these rules requires an active corporate behavior at all times and, on the other hand, the requirements arising from the fundamental rights regarding the imposition of sanctions. Such a presumption would apply even if the acts performed by the third party were different from the functions entrusted to it, and even when it was not possible to demonstrate that the undertaking that used the services was aware of the acts of the provider or consented to them.
64. This presumption should apply to an undertaking from the moment the authority responsible for the enforcement of competition rules proves the existence of an act contrary to competition law committed by a person working for (or providing services to) the undertaking but which does not, directly or indirectly, form part of its organisational chart.
 65. In order to respect the balance to which I referred in point 63 of this Opinion, the undertaking may rebut the presumption of liability by submitting all elements supporting its claim that it was unaware of the illegal behavior  in which the third party service provider engaged, and by demonstrating that it took all necessary measures to prevent such a breach of competition law precautions, and this in three stages.
66. The first is when his appointment or hiring occurs. It refers in particular to the choice of supplier, the definition of the functions and the monitoring of its implementation, the conditions (or exclusion) of recourse to subcontracting, obligations to ensure respect for the law, in particular, competition, and the sanctions for breach of contract, as well as whether authorization was required for  any act not provided for in the contract.
67. The second stage includes the period of execution of the functions entrusted to the third party, ensuring that the latter strictly sticks to its functions as defined in the contract.
68. The third stage is when the third party commits a breach of competition law, even if committed at the back of the undertaking. The undertaking cannot simply ignore that behaviour, it should distance itself publicly from the forbidden act, prevent its repetition or report it to the administrative authorities. Indeed, as stated by the Court: "... passive modes of participation in the infringement, such as the presence of an undertaking in meetings at which anti-competitive agreements were concluded, without that undertaking clearly opposing them, are indicative of collusion capable of rendering the undertaking liable under Article [101(1) TFEU], since a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, encourages the continuation of the infringement and compromises its discovery" (C-542/14, paras 60-69, references omitted, own translation from Spanish, emphasis added).
In my own opinion, the creation of the presumption proposed by AG Wathelet goes way too far. In simple conceptual terms, it excessively erodes the principle of personal responsibility and falls short of meeting the desirable balance that the AG presents himself. The 'client' undertaking and the third party service provider are, in these cases, completely independent undertakings and the creation of the presumption would go beyond the acceptable limits of expansion of the concept of (functional) single economic entity. 

Plainly, it is excessive to impose this type of burden of proof (probatio diabolica) on undertakings that simply lack the knowledge and manpower required to monitor the execution of the activities contracted out to the third party to the standard created by AG Wathelet. This applies at least in stages one (design of the contract) and two (monitoring of execution), where the 'client' undertaking will in many cases be affected by significant asymmetries of information and gaps in human capital. Otherwise, what would be the economic rationale for contracting out something the undertaking could carry out on its own?

I would thus prefer the CJEU to deviate from the proposal of AG Wathelet in this case and to reject the creation of such rebuttable presumption of liability for the anticompetitive behaviour of third parties to which a 'client' undertaking has outsourced certain types of functions. The competent competition authority should always be obliged to demonstrate, at least at the level of sufficient indicia (balance of probabilities, but for?), that the recourse to the third party aimed to circumvent the prohibition of Art 101(1) TFEU--ie, that there was an anticompetitive agreement (by object) between the 'client' undertaking and the third party services provider because the outsourcing had the object of creating further restrictions of competition (on the issue of prohibitions by object, see here). Thus, if the contracting out arrangement was not genuine or if there are indications that the outsourcing aimed at a restriction of competition, then the burden of proof could be reversed. But to create a presumption of liability in the way that AG Wathelet proposes is excessive.

CJEU makes interesting points regarding illegal presumptions of restriction of competition in public procurement (C-425/14)

In its Judgment in Impresa Edilux and SICEF, C-425/14, EU:C:2015:721, the Court of Justice of the European Union (CJEU) was asked to establish the parameters under which an economic operator can be excluded from a procurement procedure below EU thresholds for not supplying a declaration of acceptance of a legality protocol on combating criminal activity. This case is interesting because it involves the use of self-declarations as participation requirements in procurement procedures, which is bound to gain more and more importance under Directive 2014/24.

However, the Judgment in Impresa Edilux and SICEF is also remarkable because the CJEU (maybe only by coincidence) makes very important points regarding the establishment of excessive presumptions of restrictions of competition as part of this type of self-declarations. By looking in detail at the content of the declarations required from interested tenderers, the CJEU identifies a public procurement practice that results in the establishment of irrebutable presumptions of distortion of competition that go beyond what is required to uphold the principle of competition in the public procurement setting. In doing so, the CJEU establishes clear red lines regarding this type of presumptions.

This blog post focuses on both sets of issues in turn. First, it concentrates on the analysis of anti-criminal activity protocols and self-declarations. Secondly, it moves on to assess the treatment of the presumptions of competitive distortion that can derive from certain types of self-declarations.

1. Compatibility of anti-criminal activity protocols with EU procurement rules
The case at hand concerned public procurement in Italy, where Article 1(17) of Law No 190 on measures for the prevention and suppression of corruption and illegal conduct in the public administration of 6 November 2012 (‘Law No 190/2012’) foresees that ‘Contracting authorities may state in public procurement notices... that failure to comply with the clauses of legality protocols or integrity agreements is to constitute a ground for exclusion from the tendering procedure.’ 

The CJEU emphasises that, according to the referring court (ie the Council of Administrative Justice for the Region of Sicily, Italy), 'the purpose of introducing legality protocols into Italian law is to prevent and combat the pernicious phenomenon of the infiltration of organised crime, firmly entrenched in some regions of southern Italy, into the public procurement sector. The referring court takes the view that those protocols are also essential in order to protect the fundamental principles of competition and transparency underlying Italian and EU public procurement legislation' (C-425/14, para 13).

Thus, the main legal issue put to the CJEU for preliminary interpretation concerned the compatibility of exclusion grounds such as that of Article 1(17) of Law No 190/2012 with EU law in the case of public procurement procedures not covered by the relevant EU rules because the value of the contract does not meet the relevant thresholds. 

This is an important point to note. Should the value of the contract have met or exceeded the EU thresholds, the case would have concerned the compatibility of such exclusion ground with the specific rules of Article 45 of Directive 2004/18 now repealed by Article 57 of Directive 2014/24 (which, for these purposes, is fundamentally equivalent). This could have altered the legal analysis in view of the constant case law of the CJEU that interprets the exclusion clauses in Art 45 Dir 2004/18 (and now Art 57 Dir 2014/18) as listing exhaustively the grounds based on objective considerations of professional quality which can serve to justify the exclusion of a contractor from participation in a public contract

That is, the constant position in the case law that those provisions preclude Member States or contracting authorities from adding other grounds for exclusion based on criteria relating to the professional qualities of the candidate or tenderer, and more specifically professional honesty, solvency, and economic and financial capacity (see Case 76/81 Transporoute [1982] ECR 417 para 9; Joined Cases C-226/04 and C-228/04 La Cascina [2006] ECR I-1347 para 21–22; and Case C-213/07 Mikhaniki [2008] ECR I-9999 para 40–43. This has recently been reiterated in case C-376/08 Serrantoni and Consorzio stabile edili [2009] ECR I-12169 para 31; C-74/09 Bâtiments and Ponts Construction and WISAG Produktionsservice [2010] ECR I-7271 para 43; and Case Forposta and ABC Direct ContactC-465/11, EU:C:2012:801 para 38]

As the referring court indicated, this would have required an assessment of the extent to which 'Article 1(17) of Law No 190/2012 could be consistent with the third sentence of Article 45(1) of [Directive 2004/18], which, in its view, provides a derogation from the exhaustive nature of the grounds for exclusion for overriding requirements in the general interest, such as those relating to public order and the prevention of crime.' In my view, that would not be possible under Art 45(1) 2004/18 and much less now under the revised wording of Art 57(3) of Directive 2014/24. 

However, given that the contract in the case at hand was below the thresholds, the CJEU did not assess such compatibility with Art 45 Dir 2004/18 (Art 57 Dir 2014/24), and ruled exclusively in relation to the general principles of EU public procurement law (paras 18-24). Indeed, the CJEU reformulated the question in the following terms:

whether the fundamental rules and general principles of the Treaty, in particular the principles of equal treatment and of non-discrimination and the consequent obligation of transparency, must be interpreted as precluding a provision of national law under which a contracting authority may provide that a candidate or tenderer be excluded from a tendering procedure relating to a public procurement contract for not having lodged, with its tender, a written acceptance of the commitments and declarations contained in a legality protocol, such as that at issue in the main proceedings, the purpose of which is to prevent organised crime infiltrating the public procurement sector (C-425/14, para 25).

In answering that question, the CJEU makes a couple of interesting points:

28 It is clear that, by preventing criminal activity and distortions of competition in the public contracts sector, a measure such as the obligation to declare acceptance of that type of legality protocol appears to be such as to strengthen equal treatment and transparency in procurement procedures. In addition, inasmuch as that obligation is incumbent upon every candidate or concession-holder without distinction, it does not conflict with the principle of non-discrimination.
29 However, in accordance with the principle of proportionality, which constitutes a general principle of EU law, such a measure must not go beyond what is necessary to achieve the intended objective (see, to that effect, judgment in Serrantoni and Consorzio stabile edili, C-376/08, EU:C:2009:808, paragraph 33 and the case-law cited).
30 In that regard, it is appropriate ... to reject Edilux and SICEF’s argument that a declaration of acceptance of certain commitments is an ineffective means of combatting the infiltration of organised crime since observance of those commitments can be determined only after the contract concerned has been awarded. ...
32 ... as regards the content of the legality protocol ..., the commitments which must be given by candidates or tenderers under subparagraphs (a) to (d) of the legality protocol are, in essence, to indicate the progress of the works, the purpose, amount and recipients of subcontracts and derived contracts and the procedures for selecting contractors; to report any attempted interference, irregularity or distortion in the conduct of the tendering procedure and during performance of the contract, to cooperate with the police, by reporting any attempt at extortion, intimidation or influence of a criminal nature, and to include the same clauses in subcontracts. Those commitments overlap with the declarations contained in that protocol, under subparagraphs (h) to (j).
33 As regards a declaration such as that in subparagraph (g) of the legality protocol at issue in the main proceedings, whereby the participant declares that it has not concluded and will not conclude any agreement with other participants in the tendering procedure seeking to restrict or avoid competition, it is limited to the purpose of protecting the principles of competition and transparency in public procurement procedures.
34 Such commitments and declarations concern the honest conduct of the candidate or tenderer towards the contracting authority at issue in the main proceedings and cooperation with law enforcement. They do not, therefore, go beyond what is necessary in order to prevent organised crime infiltrating the public contract awards sector (C-425/14, paras 28-34, emphasis added).
Up to this point, the Judgment in Impresa Edilux and SICEF remains within what could be expected and the CJEU takes the chance to support Member States measures to prevent organised criminality where those initiatives do not conflict with explicit EU rules. As I mentioned, I am not sure that the same result would have been possible under the rules of Art 45 Dir 2004/18, or now Art 57 Dir 2014/24, unless the CJEU engaged in a line of reasoning along the lines followed in para 33 and opened the door to exclusion grounds that can be interpreted as remaining sufficiently close to the grounds actually listed in those provisions--and, in the case at hand, establishing a sufficient link with the mandatory grounds for exclusion based on participation in a criminal organisation or corruption, as regulated in Art 57(1)(a) and (b) of Directive 2014/24.

Moreover, along these same lines, the CJEU stresses that requiring a declaration to the effect of ensuring that the tenderer has not entered into anticompetitive agreements is not disproportionate--which seems useful for the interpretation of Art 59 Dir 2014/24 regarding the self-declarations that can be required from economic operators under the new mechanism of the European Single Procurement Document (ESPD). Therefore, up to this point, the case is useful but not necessarily ground-breaking.

Nonetheless, the specifics of the reasoning of the CJEU hide another interesting dimension of the case that, as mentioned, concerns a public procurement practice that results in the establishment of irrebutable presumptions of distortion of competition that go beyond what is required to uphold the principle of competition in the public procurement setting. We now turn to this second dimension of the Judgment in Impresa Edilux and SICEF.

2. Incompatibility of undercover or disguised restrictions of competition
Interestingly, after dealing with those core issues of the case, the CJEU keeps on with the very detailed assessment of the content of the specific declaration of acceptance of the legality protocol on combating criminal activity that was required from the tenderers. The purpose of this analysis is to exhaust the issue of proportionality but, maybe as a coincidence and in any case as a positive spillover, brings to light the fact that some of these protocols can include disguised measures restricting competition in terms of unduly preventing cooperation between undertakings, including  legitimate subcontracting.

In the specific case, the issue was that the required declaration included some requirements not necessarily linked with criminal behaviour, such as the obligation of participating tenderers to 'expressly and solemnly declare' that they: (e) are 'not in a relationship of control or association (legal and/or factual) with other competitors and that [they have] not concluded and will not conclude any agreement with other participants in the tendering procedure'; or (f) 'will not subcontract any type of tasks to other companies participating in the tender [...] and [are] aware of the fact that, otherwise, those subcontracts will not be authorised'. 

The CJEU assesses this requirement as follows:
36 ... it follows from the case-law of the Court that the automatic exclusion of candidates or tenderers who are in such a relationship [of control or of association] with other candidates or tenderers goes beyond what is necessary to prevent collusive behaviour and, therefore, to ensure the application of the principle of equal treatment and observance of the obligation of transparency. Such an automatic exclusion constitutes an irrebutable presumption of mutual interference in the respective tenders, for the same contract, of undertakings linked by a relationship of control or of association. Accordingly, it precludes the possibility for those candidates or tenderers of showing that their tenders are independent and is therefore contrary to the EU interest in ensuring the widest possible participation by tenderers in a call for tenders (see, to that effect, judgments in Assitur, C-538/07, EU:C:2009:317, paragraphs 28 to 30, and Serrantoni and Consorzio stabile edili, C-376/08, EU:C:2009:808, paragraphs 39 and 40).
37 ... the legality protocol also includes a declaration that the participant has not concluded and will not conclude any agreement with other participants in the tendering procedure. By excluding in this way any agreements between the participants, including agreements not capable of restricting competition, such a declaration goes beyond what is necessary to safeguard the principle of competition in the public procurement sector.

38 It follows that an obligation for a participant in a tendering procedure to declare, on the one hand, that it is not in a relationship of control or of association with other competitors and, on the other, that it has not concluded any agreement with other participants in the tendering procedure, with the consequence that, failing such a declaration, that participant is automatically excluded from that procedure, infringes the principle of proportionality.
39 Similar considerations must also apply as regards the declaration ... by which the participant declares that it will not subcontract any type of tasks to other undertakings participating in the tendering procedure and is aware of the fact that, otherwise, those subcontracts will not be authorised. In fact, such a declaration involves an irrebuttable presumption that any subcontract by the successful tenderer, after the contract has been awarded, to another participant in the same call for tenders resulted from collusion between the two undertakings concerned, without giving them the opportunity to show that is not the case. Thus, such a declaration goes beyond what is necessary to prevent collusive behaviour (C-425/14, paras 36-39, emphasis added).
These arguments of the CJEU should not be lost as a result of the apparently technical and disconnected case in which they have been made. They are essential to the assessment of the compatibility with EU law of collaboration agreements between (otherwise) competing undertakings for the tendering and execution of public contracts. In my view, these are very positive approaches by the CJEU to the issue of collaboration between tenderers and subcontracting schemes, not least because they are in line with Article 101 TFEU--and particularly 101(3) TFEU--in terms of potential justification of economically efficient instances of cooperation between economic operators.

In that regard, I consider that the CJEU has pushed for the preservation of sufficient space for a competition-law compliant analysis of teaming, joint bidding and subcontracting arrangements, for which I advocate in Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 336-340 and 353-355. In particular, I find this development particularly in line with the following arguments (p 294):
... the establishment of grounds for exclusion that tend to narrow down excessively the pool of potential participants in a tender, or that completely exclude a given type or entire category of potential bidders, will need to be scrutinised carefully. This will be one of the cases where the application of the principle of proportionality alone might be insufficient (see above chapter five) and where a purposive interpretation might be required to ensure a more pro-competitive outcome. Additional grounds for exclusion will therefore not only need to be proportionate, but should not generate unnecessary distortions to competition.
The argument can be pushed further to require that the additional rules for the exclusion of tenderers be designed exclusively to prevent undertakings from exploiting certain unlawful competitive advantages in the public procurement setting. As the ECJ has clarified, the purpose of the basic principles of equality and non-discrimination and the ensuing obligation of transparency is to guarantee that ‘tenderers [are] in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority’.[1] Therefore, the underlying rationale of the system of exclusion of tenderers is to prevent the participation of tenderers that are ex ante advantaged vis-a-vis the rest of competitors from resulting in a breach of the principle of equal treatment. Hence, the additional grounds for exclusion established by Member States should be designed in such a way that only situations under which a potential competitive advantage is clearly envisioned are covered—ie, they should not be designed exclusively in accordance with formal considerations of equality or non-discrimination. Moreover, in their implementation, contracting authorities need to be able to prove the existence of an actual advantage for the candidate or tenderer whose exclusion is being considered,[2] and an opportunity to show that no such advantage exists in the particular instance under consideration should be granted to the affected candidate or tenderer (ie, the establishment of irrebuttable presumptions should not be allowed).[3]
Therefore, it is submitted that it should be expressly recognised and taken into account that the establishment of grounds for exclusion of tenderers other than those listed in article 57 of Directive 2014/24 needs to be based on competition considerations and, more specifically, aimed at preventing the exploitation of actual unlawful competitive advantages by candidates or tenderers—since the establishment of purely formal grounds for the exclusion of tenderers not justified by the existence of associated distortions of competition would unnecessarily restrict access to public procurement.

[1] Case C-19/00 SIAC Construction [2001] ECR I-7725 34; Case C-448/01 EVN and Wienstrom [2003] ECR I-14527 47; and Case C-213/07 Mikhaniki [2008] ECR I-9999 45.
[2] Joined Cases C-21/03 and C-34/03 Fabricom [2005] ECR I-1559 33 and 35; and Case C-213/07 Mikhaniki [2008] ECR I-9999 62. For a recent application of the advantage criterion that, in our view, imposes an exceedingly demanding requirement as regards its proof, see Case T-4/13 Communicaid Group v Commission [2014] pub. electr. EU:T:2014:437.
[3] That would particularly be the case according to the reading of Fabricom made by the EGC, which has considered that the ECJ ‘held that a candidate or tenderer cannot automatically be excluded from a tendering procedure without having the opportunity to comment on the reasons justifying such exclusion’; Joined Cases T-376/05 and T-383/05 TEA–CEGOS [2006] ECR II-205 65. See also Case C-213/07 Mikhaniki [2008] ECR I-9999 69; Case C-538/07 Assitur [2009] ECR I-4219 30; and Opinion of AG Mazák in case C-538/07 Assitur 44 and fn 22, where it is argued that those measures may result in the exclusion of persons whose participation entails no risk whatsoever for the equal treatment of tenderers and the transparency of procedures for the award of public contracts—which is clearly undesirable.

An EU Competition Law Primer for Public Procurement Students

My friend and colleague Dr Carina Risvig Hamer asked me to contribute a chapter on EU competition law to her forthcoming handbook on EU public procurement she is about to publish with Djøf Forlag. She is writing it in Danish to support her teaching at the University of Southern Denmark. Thus, the book is unlikely to reach a wider English-speaking audience. This is why I decided to post the chapter on SSRN, in case there are some non-Danish procurement students interested in a first introduction to EU competition law issues.

As the abstract indicates, this chapter aims to identify the key areas where EU competition law is relevant from a public procurement perspective: that is, mainly, the prevention and sanctioning of procurement manipulation by suppliers (bid rigging) and the granting of distortive State aid that advantages some of them over others. It also focuses on potential abuses of market power by undertakings holding a dominant position, but it assesses this potential distortion of competition to a more limited extent. Once these areas are identified, the chapter describes the basic EU competition rules that apply in each of these different cases, as well as their interpretation in the case law of the CJEU. The main goal of this chapter is to provide public procurement students with an overall view and basic understanding of the EU competition rules more directly relevant to procurement practice.

The paper's full reference is: A Sanchez-Graells, 'An EU Competition Law Primer for Public Procurement Students' (October 18, 2015). Available at SSRN: