'Public procurement' for Global Dictionary of Competition Law

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I have been invited to contribute an entry on ‘public procurement’ for a new Global Dictionary of Competition Law (Concurrences Books, forthcoming). The initial draft of the entry is below. Comments welcome: a.sanchez-graells@bristol.ac.uk.

Public Procurement
Albert Sanchez-Graells
University of Bristol Law School

Definition

Public procurement rules govern the award of government or public contracts for the acquisition of supplies, works or services, including the direct provision of public services to citizens. Public procurement rules seek to foster effective competition for public contracts to generate value for money, and to harness competition as an anticorruption tool to ensure integrity and probity in the expenditure of public funds. The main challenges to effective competition in public procurement settings are bid rigging (or collusion among bidders), which risk is heightened by the transparency inherent to procurement processes, and anticompetitive requirements imposed by the public buyer.

Commentary

The effectiveness of public procurement and its ability to deliver value for money depend on the existence of two layers of competition: competition in the market for the goods, works or services to be acquired, and competition within the tender for a specific contract. While most competition analysis focuses on the existence (or absence) of competition within the tender and tends to assimilate this with models of competition for the market, this is a short-sighted approach. Except for very rare public contracts for goods, services or works for which the public buyer is a monopsonist—mainly in sectors such as defence—most public tenders take place in a framework of competition in the market, and one with many private and public buyers seeking to purchase from a range of potential suppliers (for example, tenders for the acquisition of cloud services, general supplies, or school meals). Therefore, it is important not only to ensure that procurement rules and administrative practices prevent distortions of competition within a given tender, but also that they do not generate negative knock-on effects on (dynamic) competition in the relevant market.

The most commonly discussed distortion of competition within a public tender concerns anticompetitive agreements between bidders (bid rigging) that seek to manipulate the competition for the public contract and to extract excessive rents from the public buyer. The mechanics of bid rigging schemes are widely understood, including predominant strategies such as cover bidding, bid suppression, bid rotation and market allocation. However, these anticompetitive practices are also difficult to prevent in oligopolistic or concentrated markets because the transparency inherent to public tenders significantly facilitates monitoring of the cartelists’ bidding behaviour, and because the atomisation of public tenders requires a significant investment in market screening tools to spot suspicious patterns across regional markets and over time. Fighting cartels in public procurement settings has become a high priority for most competition authorities in recent years, in part as a result of the OECD’s work on this area—see its 2012 Recommendation on Fighting Bid Rigging in Public Procurement—as well as the push by the International Competition Network. There is also hope in the development of effective systems of automated screening and red flags where public procurement is conducted electronically (of which there is longstanding experience eg in Korea in relation to its eProcurement platform KONEPS), but these require a solid procurement data architecture which absence has marred recent attempts in jurisdictions such as the UK and its now abandoned ‘Screening for cartels’ tool.

An additional difficulty in ensuring effective competition within a given tender derives from the unclear boundary between anticompetitive practices such as bid rigging and procompetitive cooperation through teaming, joint bidding and subcontracting arrangements between bidders. There is currently significant debate about the limits to cooperation between (potential) competitors in the context of procurement procedures, as well as whether it should be treated as a restriction of competition by object or by effect for the purposes of Article 101 TFEU. The debate is particularly alive in Scandinavian countries, following a 2016 Decision by the EFTA Court in the Ski and Follo Taxi case, and a more recent 2019 Judgment by the Danish Supreme Court in the Road Markings case, which has led to a revision of the Danish Competition and Consumer Authority’s guidelines on joint bidding. The main points of contention about the state of the law concern the counterfactual to be used to determine that joint bidders are (potential) competitors, as well as the measurement of any efficiencies passed on to the public buyer.

In order to empower public buyers to self-protect against bid rigging and to strengthen the effectiveness of competition law in public procurement settings, EU procurement rules have created discretionary grounds for the exclusion of bidders ‘where the contracting authority has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition’, as well as in cases ‘where the contracting authority can demonstrate by appropriate means that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable’—which the Court of Justice of the EU has interpreted as inclusive of non-procurement related breaches of competition law (Generali-Providencia Biztosító). Recent Court of Justice case law has clarified the extent to which these exclusion grounds are applicable where bidders have benefitted from leniency, as well as the intensity of the duty to cooperate incumbent upon bidders seeking to avoid exclusion through self-cleaning measures (Vossloh Laeis). The system created under the EU rules is converging with those of other major jurisdictions, such as the US, where the Federal Acquisitions Regulations allow for similar approaches to assessing the responsiveness (or reliability) of bidders engaged in anticompetitive practices.

Beyond the abovementioned issues, which are all concerned with bidder behaviour, it is important to stress that competition within a public tender can be restricted through decisions made by the public buyer, such as the imposition of excessive participation requirements, the choice of suppliers in less than fully open procedures or foreclosure through eg the use of excessively broad and excessively long framework agreements. Such restrictions of competition can not only generate losses of value for money in the allocation of the specific contract, but also have negative effects on dynamic competition in the relevant market. Unfortunately, the direct application of competition law (ie Article 102 TFEU) to the public buyer has been excluded by the case law of the Court of Justice, except in rather rare situations where the public buyer is engaged in downstream market activities (FENIN). However, a principle of competition has been explicitly enshrined in EU public procurement law to prevent public buyers from ‘artificially narrowing competition’, in particular where ‘the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators’. This is a promising tool to prevent publicly-generated restrictions of competition in public procurement settings, although its interpretation generates some difficulties and its application is yet to be tested in the EU Courts.

Case References

Case C-205/03 P FENIN v Commission, EU:C:2006:453.

Case C-470/13 Generali-Providencia Biztosító, EU:C:2014:2469.

Case C-124/17 Vossloh Laeis, EU:C:2018:855.

EFTA Court, Judgment in Case E-3/16, Ski Taxi SA, Follo Taxi SA og Ski Follo Taxidrift AS v Staten v/Konkurransetilsynet, 22 December2016.

Danish Supreme Court, Judgment in the Road Markings case, 27 November 2019. The case is not available in English, but a comprehensive discussion by Heidi Sander Løjmand can be found at https://www.howtocrackanut.com/blog/2019/11/28/the-danish-supreme-courts-ruling-in-the-road-marking-case-the-end-of-a-joint-bidding-era-guest-post-by-heidi-sander-ljmand-msc [accessed 22 Jan 2021].

Bibliography

Robert Anderson, William Kovacic and Anna Caroline Müller, Promoting Competition and Deterring Corruption in Public Procurement Markets: Synergies with Trade Liberalisation (2016) http://e15initiative.org/publications/promoting-competition-and-deterring-corruption-in-public-procurement-markets-synergies-with-trade-liberalisation/ [accessed 22 Jan 2021].

Alison Jones, ‘Spotlight on Cartels: Bid Rigging Affecting Public Procurement’ (Concurrentialiste, 16 Nov 2020) https://leconcurrentialiste.com/jones-bid-rigging/ [accessed 22 Jan 2021].

Katarzyna Kuźma and Wojciech Hartung, Combating Collusion in Public Procurement. Legal Limitations on Joint Bidding (Edward Elgar 2020).

Albert Sanchez-Graells, Public Procurement and the EU Competition Rules (2nd edn, Hart 2015), Chapter 5.

Albert Sanchez-Graells, ‘“Screening for Cartels” in Public Procurement: Cheating at Solitaire to Sell Fool’s Gold?’ (2019) 10(4) Journal of European Competition Law & Practice 199-211.

Collusion in procurement book launch, 10 Dec 2020

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Dear How to Crack a Nut friends,

You are kindly invited to the book launch of Katarzyna Kuźma and Dr Wojciech Hartung's Combating Collusion in Public Procurement. Legal Limitations on Joint Bidding (Edward Elgar, 2020). It will take place online on 10 December 2020 at 11.30 UK time via Zoom. The authors will be joined by Dr hab. Piotr Bogdanowicz and Jesper Fabricius, as well as yours truly, to discuss recent developments in the treatment of joint bidding under Article 57 of Directive 2014/24/EU, as well as the outstanding legal uncertainty on the interpretation and application of this provision, which Katarzyna and Wojciech have analysed in detail in their book.

More details and free registration here: https://www.eventbrite.co.uk/e/combating-collusion-in-public-procurement-book-launch-and-discussion-tickets-130271675087.

All the best, Albert

The Danish Supreme Court’s ruling in the “Road Marking Case”: the end of a joint bidding era [guest post by Heidi Sander Løjmand, MSc]

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In this insightful and thoughtful blog post, Heidi Sander Løjmand discusses the hot-off-the-press Judgment of the Danish Supreme Court in longstanding litigation concerned with joint bidding in procurement procedures. As she stresses, this is a ‘must-know’ case for all competition and procurement practitioners, much as the earlier Norwegian SKI Taxi and the related EFTA Court Judgment, because it fleshes out the difficulties and implications of a strict application of competition law in this setting.

The Danish Judgment is likely to mark the end of an era in Danish practice, as Heidi points out, but it will certainly only add fuel to the fire of academic and policy-making discussions about the interpretation and application of Article 101 TFEU in the context of public procurement. I for one, am very grateful to Heidi for making this interesting line of Scandinavian case law accessible in English, as well as for sharp questioning of the legal arguments. 

The Danish Supreme Court’s ruling in the “Road Marking Case”: the end of a joint bidding era

Yesterday, the 27th of November 2019, the Danish Supreme Court delivered its long-awaited judgment in the so-called “Road Marking Case”. The full judgment is available here (in Danish). The Danish Supreme Court found that joint bidding by companies that could have submitted independent bids for several lots of the same tender constituted an anticompetitive agreement between competitors and, as it included an agreement on the price of the tender as well as on the division of the services (share by lots) to be carried out by each of the teaming companies, it constituted a by object violation of Art 101(1) TFEU and the domestic equivalent, Section 6 of the Danish Competition Act. In doing so, the Danish Supreme Court upheld the initial decision by the Danish Competition Council and overturned an intermediate decision by the Danish Maritime and Commercial High Court that had deemed the joint tendering lawful.

1. Background

In 2010, the consultancy firm McKinsey & Company provided the Danish Government with a report on how to increase economic growth through competition. Amongst the suggestions were to consolidate public tenders within the construction and services industries in order to (i) take advantage of potential economies of scale, (ii) to attract foreign companies, and (iii) to apply procurement procedures and tender requirements that encourage efficient operation. Such initiatives would, according to the report, lead to fewer yet bigger and more efficient companies, and thus to a better utilization of economies of scale.

Tender I (2012): In that light, the Danish Road Directorate changed its tender format and published – in 2012 for the first time – an invitation to bid for a consolidated tender comprised of 337 contracts covering 19 different subject areas. One subject area was road marking. The demanded road marking services were divided into five lots/contracts covering different geographical areas. It was possible to submit bids for one or more lots; companies submitting bids for multiple lots could offer rebates not exceeding 20%, compared to the aggregation of their offers for individual lots. The award criterion was the lowest price.

The two road marking companies, Eurostar Danmark A/S and GVCO A/S (formerly LKF Vejmarkering A/S) (hereinafter referred to as Eurostar and GVCO or the parties) decided to team up and submitted a joint bid with a rebate for all 5 contracts via their agreement-based Danish Road-marking Consortium. The consortium was unsuccessful. All 5 contracts were awarded to the competitor, Guide-Lines, who had offered a 20% rebate (it bears mentioning that Guide-Lines would have won all the contracts without the rebate).

Tender II (2013): One year later, Guide-Lines won a similarly structured tender by the Road Directorate regarding road maintenance. As in 2012, Eurostar and GVCO submitted an unsuccessful joint bid via their Danish Road-marking Consortium.

Tender III (2014): Guide-Lines defaulted on two of their road marking contracts (i.e. from the 2012 tender) as they were unable to perform according to the set time and work schedules. As a consequence, the Danish Road Directorate decided to publish an invitation to bid for 3 of the initial geographical lots. The procurement format was similar to the two previous tenders, except this time there was no limit to the size of the rebate. For the third time, Eurostar and GVCO submitted a joint bid through their Danish Road-marking Consortium for all three contracts. If the consortium was awarded one contract, no rebate would be granted. If it won two or three contracts a rebate of 5% or 20% would be granted, respectively. The consortium won all three contracts. It turned out that no other company had submitted a total bid for all three lots, and on one of the lots the consortium’s bid was the only one. Guide-Lines had submitted a bid for two lots with no rebate, and Lemminkäinen for one lot. Guide-Lines filed a complaint with the Danish Competition Council alleging that the joint bid from Eurostar and GVCO constituted an infringement of Section 6 of the Danish Competition Act and art. 101(1) TFEU. 

It is worth noting that Eurostar and GVCO concluded a new consortium agreement for each of the three above-mentioned tender procedures. The civil charges in the present case concerned only the consortium agreement between Eurostar and GVCO in relation to the 2014-tender. The criminal charges that were brought against the parties in 2016 following the Competition Appeals Tribunal’s decision (discussed below), however – remarkably – accuse the parties of having entered into a cartel agreement in the period from primo 2012 to ultimo 2014, thus including the collaboration between the parties in all three tenders. It shall be interesting to see the outcome of the criminal proceedings, not least because individuals engaged in cartel behavior (which is defined very broadly in the Danish Competition Act) face the risk of prison sentences of up to 6 years. Fortunately, the Danish Appeals Tribunal noted in its decision that the joint bidding in question did not amount to a classic cartel.

2. Procedural history

A) Decision of the Danish Competition Council (24 June 2015) [available in full here (in Danish)].

The Competition Council found that Eurostar and GVCO had infringed the prohibition on anticompetitive agreements. Decisive for this finding was that the two companies could have submitted separate bids on at least one lot with their current individual capacity. In addition – though it was not essential for the conclusion – the companies could have expanded their individual capacities so as to bid separately for all three lots. They were therefore to be regarded as competitors in the tender procedure at issue, despite their argument that they were not competitors because they were incapable of submitting individual bids for all three lots, and that this, the total tender, was the relevant benchmark due to the way the procurement procedure was structured.

The Competition Council found that the joint bidding constituted an infringement by object because the consortium agreement was concluded between competitors (debatably the two largest in the industry, that were also subsidiaries of two large corporate groups: SAFEROAD and Geveko AB), and it contained the fixing of a joint price as well as an agreement to share the different geographical lots between the two companies with (allegedly) no pooling of resources etc. Not surprisingly, the Competition Council also found that the agreement did not meet the conditions for exemption under art. 101(3) TFEU.

The parties appealed the decision to the Danish Competition Appeals Tribunal.

B) Decision of the Danish Competition Appeals Tribunal (11 April 2016) [available in full here (in Danish)].

The Danish Competition Appeals Tribunal upheld the Competition Council’s decision but refrained from assessing whether Eurostar and GVCO had – or could achieve – sufficient capacity to submit separate bids on the entire tender. The parties indisputably had the capacity to bid individually for some of the lots and were therefore to be regarded as competitors. In light of this, the Tribunal found that their agreement to submit joint bids eliminated competition between them, and that it infringed art. 101(1) TFEU by object. Like the Competition Council, the Tribunal found that the criteria for exemption under art. 101(3) TFEU were not met.

Once again, the parties appealed the decision to the Danish Maritime and Commercial Court. 

C) Judgment of the Maritime and Commercial High Court (27 August 2018) [available in full here (in Danish)].

Contrary to the decisions of the competition authorities, the Maritime and Commercial High Court found that the agreement between Eurostar and GVCO to submit joint bids did not infringe art. 101(1) TFEU. The Court noted that the tender was structured in a way that favored bids on all three lots, and that the companies’ ability to submit separate bids on some lots could not prevent them from teaming up for the purpose of submitting a joint bid for the entire contract. In the Court’s view, such a restriction on companies’ freedom to carry out their business would not necessarily promote competition.

Since the Competition Council had not provided sufficient proof that Eurostar’s and GVCO’s capacity calculations were inaccurate, the Court found that the parties were unable to independently bid for the entire contract. As a consequence – though it is not explicitly stated – they were not classified as being competitors, and therefore the agreement fell entirely outside of the scope of art. 101(1) TFEU. The competition authorities’ decisions were thus set aside.

Besides the different benchmark for assessing when two companies are competitors in connection to a tender procedure, the Court also stated its view on the Competition Council’s way of assessing companies’ ability to bid independently. The Council did not allow the companies to subtract resources allocated to the servicing of existing key customers, unless written agreements were in place. The Court dismissed this, stating that companies are entitled to take account of such capacity if the expectation of recurring orders is backed by previous experience. It would be commercially irresponsible not to.

This time, the Danish Competition Authorities appealed the judgment. 

3. Ruling of the Danish Supreme Court (27 November 2019)

As already noted, the Supreme Court set aside the judgment of the Maritime and Commercial High Court. It is worth mentioning that during the proceedings, the Supreme Court refused to refer questions to the CJEU for a preliminary ruling as it found the law to be clear. The questions submitted by the parties have not been published, and thus it is not possible to elaborate on the justification of the Court’s refusal.

In general, the Supreme Court gave support to the interpretation applied by the Competition Appeals Tribunal. Initially, the Court confirmed that Eurostar and GVCO would not be treated as competitors if they were incapable of undertaking the services demanded by the Road Directorate independently, and that the basis for evaluating this ability was the requirements of the tender documents. Remarkably, the Supreme Court then stated that all the conditions, which according to the two consortium parties encouraged the submission of total bids—i.e. the terms of the tender (consolidation of previous smaller tenders + option to provide collective rebate) and the history of previous tenders (in which the winner submitted a total bid)—were irrelevant. Because the tender documents objectively allowed companies to bid for one, two or all three lots, the Supreme Court found no basis for the view that the “real contest” was for the total tender, i.e. all three lots. The Supreme Court instead observed that the other tenderers submitted bids for only one or two lots, respectively.

Since it was undisputed that Eurostar and GVCO could have submitted separate bids on individual lots, the Supreme Court found that Eurostar and GVCO were competitors in relation to the tender procedure at issue. On the issue of object/effect, the Supreme Court acknowledged that the agreement between the two companies was entered into with the purpose of submitting a joint bid on the Road Directorate’s tender and to perform the tasks accordingly if the consortium was successful. The Court then went on to state that the agreement did not possess the characteristics of a production agreement, and that it did not foster collaboration between the parties as to the actual performance of the offered road marking services, since the parties had decided ex ante which one of them should operate in the respective geographical areas in each possible outcome (i.e. whether the consortium won one lot, two or three). On this note, the Supreme Court concluded that the consortium agreement was in fact a means to distribute two individual companies’ services – and highlighted the price fixing as well as the market division element – and that the Appeals Tribunal was right in finding that it amounted to a restriction of competition by object. Not surprisingly, the Court also found that the conditions for individual exemption under art. 101(3) TFEU had not been proved to be met.

4. Comment

The Danish Road Marking Case is the second case in Scandinavia to make it all the way to the Supreme Court. In 2017, the Norwegian Supreme Court decided on the much-debated Ski Taxi case, in which two taxi companies had submitted joint bids via a jointly-owned administrative company for a number of years (for comments on the case, see e.g. A Sanchez-Graells, “Ski Taxi: Joint Bidding in Procurement as Price-Fixing?” (2017) 8(7) Journal of European Competition Law & Practice 451–453, and I Herrera Anchustegui, “Joint bidding and object restrictions of competition: The EFTA Court’s take in the ‘Taxi case’” (2017) 1(2) European Competition and Regulatory Law Review (CoRe) 174-179).

One would like to believe that, with these cases, the boundary between legal and illegal joint bidding should be just about clear-cut; providing legal certainty for the companies thereby allowing them to plan effectively their bidding strategy and behaviour. The reality is, however, that even with the clarity stemming from the mentioned cases, many (essential) issues still remain unsettled and/or ambiguous (as recently pointed put in a joint letter of 1 November 2019 to the European Commission by the Confederation of Danish Industry (DI), the Confederation of Norwegian Enterprise (NHO), the Confederation of Swedish Enterprise (Svensk Näringsliv), the Confederation of Finnish Industries (EK) and the Federation of Icelandic Industries (SI); on file with author)

First. When are two companies to be regarded as (of particular interest potential) competitors in relation to a certain tender procedure? The Supreme Court cases clearly indicate that it suffices to classify two companies as competitors if they are capable of submitting bids on some (the same?) lots, and that it is irrelevant whether they have the ability to submit bids for the entire tender/contract for which they have actually teamed up to bid.

The Danish Supreme Court does not seem to give importance to the distinction between the individual lots, but it follows from the Competition Council’s decision that GVCO had the capacity to submit an individual bid on lot A or B and Eurostar on lot A and B (given the information about the lot sizes, Eurostar could presumably also have bid for lot C instead of lot A and B). Without specifically mentioning that the two companies are competitors because of their ability to submit individual bids on (some of) the same lots, the Danish Supreme Court leaves the impression that if company 1 is able to submit an individual bid for lot A, and company 2 for lot B, the two companies will be competitors in relation to a tender consisting of the two lots A and B. Unless the two lots are very similar in size – and needless to say concern the same product – this logic does not appear very convincing or pro-competitive.

Providing the lots A and B are similar, what is clear from the Danish Supreme Court’s approach is that the possibility of receiving two bids on lot A or lot B is favoured over the possibility of receiving one (joint) bid on lot A and B. For the contracting authority (and society in general), this may not be the most desired (economically efficient) approach, as lot B will have to be re-tendered if company 1 and 2 happen to submit individual bids on the same lot (provided of course that there are no other bidders than company 1 and 2).

Both the Norwegian and Danish Supreme Court cases concerned contracts/lots of the same product. It is not clear-cut how the analysis is to be applied to tenders of e.g. framework agreements or public contracts with various products. Two companies could have subject-specific overlaps but different key operations – a consultancy firm specialized in construction could have in-house architects employed (or have architecture companies as subsidiaries) but want to team up with a specialized, independent architecture company. If a tender is divided into lots, one of which concerns architectural services, would such an overlap in competencies lead to the conclusion that the consultancy firm and the architect are competitors, because of their ability to bid for the “architecture lot”? Or should they be viewed as non-competitors in relation to the entire tender/or to the demanded consultancy services of which architecture services may just be a part?

Second. The Danish Supreme Court did not consider the capacity assessments put forward by the parties or the Competition Council in order to prove the companies’ (in)ability to submit individual bids. It is therefore uncertain whether the parties’ calculations had been sufficient to prove their lack of individual abilities, if the benchmark had been the entire tender as in the Maritime and Commercial High Court’s view. It is going to be very interesting to see how far the assessment of a company’s “real and concrete possibilities” to expand its capacity in order to submit a bid (on a single lot!) will be stretched. Indeed, if the standard follows that of the Competition Council in the Road Marking Case (which however concerned the ability to expand in order to bid for the entire tender, not single lots) it seems many companies are likely to be viewed as potential competitors for future procurement tenders.

Third. It remains undecided how the use of sub-contractors affects the competition assessment. If it is common to use sub-contractors, should two companies be classified as competitors if they could submit individual bids with the use of (non-competitors) as sub-contractors? In a case for the Norwegian Competition Authority (Vedtak V2009-17 – Gran & Ekran AS og Grunnarbeid AS [available here (in Norwegian)], the company Gran & Ekran could perform only 8% of the tasks required in the tender. The fact that the company had contacted a sub-contractor with a view to submit a bid for the entire tender, however, indicated to the competition authority that it was a potential competitor to the company Grunnarbeid. Though the case is not a straight-forward joint bidding case as it concerned a reciprocal sub-contracting arrangement between Gran & Ekran and Grunnarbeid (and was assessed ex post with the knowledge that both parties in fact submitted separate bids on the entire tender with each other as sub-contractors, and thus were de facto actual competitors), it raises the question whether – in a “more traditional” joint bidding case – a company with such a limited ex ante competence to bid risks being considered a potential competitor for a tender (lot!?) to which 92% of the tasks must be performed by sub-contractors?

Fourth. The relevance of whether the companies submitting a joint bid are competitors in the market “outside of” the particular tender appears ambiguous. The Danish Supreme Court observed in its commented Judgment that Eurostar and GVCO were amongst the biggest Danish undertakings in the road marking industry at the time the Road Marking Consortium was established and the joint bid submitted, and that they were active in the same market and at the same level of the value chain. Thus, it is apparent that they were competitors in the traditional relevant market; but (why) does this matter?

In a recent case for the Danish District Court [Retten i Glostrup, case 15-10950/2017 Bjerregaard Sikkerhed, available here (in Danish)] two companies’ (lack of) competitive relation outside of the tender procedure was determinative for the conclusion. The company Bacher Logistics (formerly Four Danes) submitted a bid for an entire tender (i.e. 5 lots of various work wear and logistics) with the company Bjerregaard Sikkerhed as a sub-contractor. Bjerregaard Sikkerhed, however, also submitted an independent bid for one of the lots, and thus the two companies were de facto competitors for that lot. The two independent bids from the companies on that specific lot were identical. Nevertheless, the Court found that – with the evidence presented – this behavior did not amount to a restriction of competition. The conclusion rested on mainly three arguments:

i)               since the companies were specialized in different products/services (specialist wholesaler within safety footwear vs logistics), they were not normally competitors;

ii)              there was nothing unusual about the commercial practice of submitting bids based on prices/product information from sub-contractors; and

iii)            it was unlikely that the sub-contractor would have been able to submit a better bid.

 As with the Norwegian case mentioned above, this case is not a “straight-forward” joint bidding case, yet it opens for a discussion of the impact that the competitive relation outside of a specific tender may have for the assessment of the companies bidding behavior.

Fifth. As regards the size and number of the teaming companies, one could in the light of the Maritime and Commercial High Court’s approach wonder: if two consortium parties are amongst the biggest companies (no. 1 and 2, or 2 and 3) in a highly-concentrated industry, and none of them could bid individually for a contract, what is the likelihood of other market participants being able to? Presumably, less likely. Would the acceptance of a joint bid between these two companies then not lead to the conclusion that all of the industry’s companies could have teamed up to submit one joint bid without conflicting with the competition rule, because none of them could be regarded as competitors in relation to the tendered contract? No. Though it does not appear from any the mentioned cases, a joint bidding arrangement may restrict competition if it involves more companies than it is objectively necessary to submit a bid, even if the companies are not competitors in relation to the specific tender.

The requirement of a joint bid being “objectively necessary” also raises – in light of the Road Marking Case – the question of whether account should be taken of the size/market share/market power of the teaming companies. Would it have been objectively necessary that the allegedly two largest companies teamed up, even if they were incapable of submitting individual bids? What if the two companies could have submitted bids in competition with each other by teaming up with any of the industry’s smaller enterprises; should they be regarded as competitors because of that possibility? Can and should competition law impose such a “less restrictive means” approach to determine the legality of joint bidding, and if so should it be applied to determine whether two companies are competitors or whether the restriction is by object or by effect for the purposes of art. 101(1) TFEU, or perhaps reserved for whether exemption is possible under art. 101(3) TFEU?

Sixth. An issue that has not been given much attention in the mentioned cases is the risk of achieving static efficiency as opposed to dynamic, when assessing the legality of a joint bid with a sole focus on the particular tender procedure at issue. Such an approach risks neglecting the possible spill-over effects that may affect the broader market on which the companies operate, including for example higher (joint) concentration. Of course, one may argue that if there is an expectation that consortium members will bid jointly for future contracts, the industry’s other companies will (need to) team up in order to effectively compete against that consortium. This may promote economic efficiency, if the (likely) fewer bids are more competitive than any individual bids would have been; thus, such promotion of a more concentrated industry structure (in the bidding market) may not sit as awkwardly together with competition policy as would appear at first sight. One could, however, wonder whether this type of structural assessments belong to the enforcement of the prohibition of anticompetitive practices rather than e.g. merger control, as joint tendering in one occasion does not necessarily imply joint tendering for future contracts.

More generally, this line of argumentation raised one of the main questions in the Road Marking Case: Do fewer bids necessarily equal a restriction of competition when such could provide the public authority with a higher (or equivalent) value-for-money than individual bids? Having in mind that the goal of competition law is to promote economic welfare (for the consumers), and that the mean to achieve this goal is effective competition, it would be useful to obtain further clarity on how exactly “effective competition” is to be understood in a public procurement context, and how the static welfare of a contracting authority stemming from one tender procedure is to be weighed against the dynamic welfare of other contracting authorities and consumers in its broader sense.

Seventh. A different but somewhat related topic, which the cases do not provide clarity on, is whether and/or when joint bidding constitutes an infringement of competition law by object or by effect; and how much detail and effort is needed to establish an object infringement. In the Road Marking Case both the competition authorities and the companies used AG Bobek’s fish metaphor (Opinon of 5 September 2019 in Budapest Bank and Others, C-228/18, EU:C:2019:678, para 51) to support their respective views.

The companies claimed that, although the consortium agreement perhaps looked like a fish and smelled like a fish, it possessed so many characteristics different from a fish that in order to qualify it as such, a detailed examination (of its effects) should be carried out. Of course, they also argued the obvious; since joint bidding can have pro- as well as anticompetitive effects on competition, such behavior does not categorically fall into “the object box”. In fact, because of its ambivalent effects, joint bidding should always require a detailed analysis as to the effects on competition.

Not surprisingly, the competition authority argued to the contrary. In their view, the consortium agreement looked like a fish, smelled like a fish, and behaved like a fish; and no circumstances in the market could convincingly question the (likely) anticompetitive effects of such a fish. It was a price fixing and market sharing agreement between competitors, and because such have long been classified as object restrictions, no detailed analysis was needed to establish that it was in fact a fish. The only plausible object of the agreement was to restrict competition. As revealed, the Danish Supreme Court supported the authority’s interpretation.

Clearly, the parties and the competition authority viewed the agreement very differently. Some may argue that at first glance their different approaches seem to fit nicely into “the more economic” vs “the orthodox” approach to competition law enforcement. The authority seemed to follow the rather stringent approach adopted by the Norwegian Supreme Court and the EFTA Court in the Ski Taxi case, where a joint bidding arrangement was deemed a restriction of competition by object mainly due to its price-fixing element. From an enforcement perspective, this simple yet inflexible approach is not hard to understand; merely observing a price-fixing element between competitors renders a joint bidding arrangement anticompetitive by object, regardless of any legitimate purposes or (likely) pro-competitive effects. The benefits of this approach are that it provides a high degree of legal certainty; it reduces the procedural burden of the competition authorities under art. 101(1) TFEU; and it effectively reverses the burden of illegality to the parties, who must provide sufficient evidence to prove fulfilment of the cumulative conditions in art. 101(3) TFEU to find their joint bidding agreement exempt. This approach, however, also creates risk of type I enforcement errors, i.e. condemnation of conducts that are not anticompetitive, and may lead businesses to refrain from entering into joint bidding arrangements that are not harmful to competition—to the potential detriment of contracting authorities and, ultimately, taxpayers.

The parties in the Road Marking Case did not give “stand-alone” importance to the price fixing element as this is an inevitable element of joint bidding. To correctly assess the restrictive effects of joint bidding one should therefore see the price-fixing element in its rightful context. This led to another principal disagreement in the case; namely, determining which facts and circumstances should be included in the “legal and economic context”, and which should be reserved for the analysis of efficiencies under art. 101(3) TFEU. The companies argued that past experience from comparable tenders revealed that the winning bidder was likely to be found amongst those who submitted bids for the entire tender, and the companies’ legitimately anticipated participation by foreign tenderers to submit such “total bids” because of the Road Directorate’s active marketing efforts in the Nordic countries. These circumstances determined the parties’ bidding strategy and should, according to the parties, be taken into account under the legal and economic context (art. 101(1) TFEU). The authority noticed that the companies’ ability to provide a “more competitive bid” (i.e. a “more likely to win” bid) could only be assessed under art. 101(3), as the ability to bid is the determinative factor under 101(1) TFEU, not the ability to win, and objectively it was not a requirement that tenderers submitted “total bids”. Again, as already declared, the Danish Supreme Court upheld the authority’s approach, leaving much to be desired from a commercial bidding strategy perspective.

It is correct that it was objectively possible to submit bids for one or several lots, and that the consortium parties could in fact have done so independently. The problem is that in reality no company (except in certain cover price cases) submits bids merely to participate in public tenders because of the costs involved; they bid to win. If they assess that there is no (or a low) chance of winning, they will refrain from bidding. The Maritime and Commercial High Court acknowledged this commercial reality of the companies, and though the Court repealed the case primarily because the parties were not competitors (in relation to the entire tender), it also noted that the Competition Appeals Tribunal had failed to carry out the necessary, concrete assessment of the agreements’ purpose and character so as to conclude with sufficient clarity that it had the object of restricting competition. Whether the Maritime and Commercial High Court would have repealed the case if the companies had been found to have the ability to individually submit bids for the entire tender, is questionable.

The Supreme Court found that, in the given market settings, the consortium agreement by its very nature had the potential to restrict competition, and thus it was unnecessary to demonstrate any actual anti-competitive effects on the market. Neither the parties’ subjective purpose of submitting a more competitive bid, nor the fact that the collaboration happened openly, could change this.

The questions and issues highlighted above are by no means exhaustive, but already demonstrate the complexity of the enforcement of competition law in the context of public procurement. Further topics within the joint bidding sphere are equally interesting (and unclear), for example; the possibility of joint bidding arrangements fulfilling the conditions for exemption under art. 101(3) TFEU; the burden of proof and usage of the proof proximity principle in regards to the assessment of companies’ (lack of) capacity to bid individually; the substance of the profitability test when assessing whether it constitutes a sustainable business strategy to expand company capacity; the relevance and significance of ex ante vs ex post facts; the limits on information exchange between the companies during the different stages of the tender process; the relevance and application of auction theory; the relevant market and competitor-analysis when applying the de minimis, the qualification of illegal joint bidding as cartel behavior that may be faced with criminal charges; etc.

Needless to say, the Road Marking Case limits the possibility for companies to bid strategically with each other; or at least it makes clear that such collaboration must involve some integration of resources/competencies. A prospective need to (maybe) pool resources if needed during the contract period does not suffice, if the market (in this case geographical lots) has been divided between the parties ex ante. The case, however, not only offers a cautionary tale to companies but also to contracting authorities when it comes to procurement design (as did the SKI Taxi case, as discussed by Sanchez-Graells in this blog). Clearly, the contracting authorities have very limited scope to utilize the benefits of potential bidders’ economies of scale, if at the same time, they decide to divide the tender into lots.

Looking at the future, it is worth stressing that the detailed Danish Guidelines on joint tendering [available here (in English)]: were amended – in a less than convincing way – to reflect the judgment of the Maritime and Commercial High Court. In light of yesterdays’ Supreme Court judgment, the Danish Competition and Consumer Authority may simply pick out the few comments reflecting the High Court’s stance and change the guidelines back to how they used to be.

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Heidi Sander Løjmand, MSc

Heidi Sander Løjmand is a PhD Researcher at the University of Southern Denmark (Law Department). In her PhD she explores the approach to joint bidding under art. 101(1) TFEU, in particular in the Nordic Countries. She holds a master’s degree in Business Administration and Commercial Law (law and economics) from Copenhagen Business School, and has previously worked in legal practice. You can connect with Heidi via LinkedIn: https://www.linkedin.com/in/heidi-sander-l%C3%B8jmand-ba41513b/.

Comments to Danish Draft Guidelines on Joint Tendering

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The Danish Competition and Consumer Authority has published draft guidelines on joint bidding under competition law and invited comments by 1 September 2017. The following are the comments I have provided in the context of this public consultation. It will be interesting for me to see if the Authority takes any of these issues into account in the final version of its guidance.

The document provides a useful overview of the issues involved in an analysis of the compatibility of undertakings’ collaboration for the submission of joint tenders for public contracts with Article 101 TFEU (and domestic equivalents). The guidance is largely applicable to subcontracting arrangements as well, and it usefully incorporates recent examples of competition investigations in Scandinavian jurisdictions—with special attention given to the recent EFTA Ski Taxi Judgment.[1] It is particularly welcome that the Danish Competition and Consumer Authority has made the effort of publishing the guidelines in English, which can position them as an important point of reference in all EU/EEA jurisdictions after their official adoption.

The draft guidelines pivot centrally around the consideration of whether undertakings seeking to collaborate in the submission of a joint tender could bid independently for a given contract. That is, they follow the standard approach of considering that collaboration in the form of joint bidding (or subcontracting) is problematic where it reduces the level of competition that could otherwise exist for a public contract, unless it generates net efficiencies that are passed on to the contracting authority.[2] From that perspective, the draft guidelines send some useful clear messages, such as the need:

  1. for undertakings to conduct objective self-assessments of their own capacity to individually perform the contract prior to engaging in discussions with potential consortium partners;
  2. to tailor the analysis to the size and requirements of the lots in which a contract can be divided, rather than limiting the assessment to a holistic view in relation to the execution of the whole contract;
  3. to carry out case-by-case assessments of that capacity and the ensuing warning against stable joint tendering arrangements that fail to meet the thresholds for the creation of a full functioning joint venture; and
  4. to keep adequate records of those assessments for the purposes of enabling full and considerate responses to requests for information in the context of a competition investigation.

Given the complexity of the topic, however, there are some aspects of the draft guidelines that are less clear cut and where, in my opinion, there is scope for improvement and further clarification in the guidance finally adopted by the Authority. The assessment of relationships of potential competition in the context of restrictions of competition by object and the treatment of risk-driven collaborations deserve some careful consideration. These are issues that have spillover effects on the treatment of exchanges of information between undertakings considering bidding jointly for a public tender. This contribution addresses these three issues.

1. Treatment of potential competition

 The guidelines concentrate on the analysis of joint tendering by competitors and, implicitly, recognise that non-competing undertakings can freely cooperate in the context of public procurement (as in any other area of economic activity). This could be said explicitly, but there is no indication to the contrary in the draft guidelines. However, given the broad approach to the consideration of potential competition relationships between consortium members, and the assumption that joint bidding can be assessed as a restriction of competition by object because it involves price setting (following the EFTA Ski Taxi Judgement, above, in p. 20, box 2.11), the guidelines create some uncertainty.

On the one hand, because they indicate the possibility of joint tendering benefitting from block exemption regulations (BERs, see p. 30, para 3.2), despite the fact that price fixing is a hardcore restriction that excludes the applicability of the BERs. It would thus need to be clarified whether the Authority considers joint tendering as a restriction by object structurally involving price fixing or not, as well as the consequences of the position taken on this point. On the other hand, the guidelines create uncertainty because they do not address the tricky boundary issue of joint tendering by potential competitors as clearly as it would be possible.

The ambivalence or lack of clarity of the guidelines on this issue permeates the analysis and sometimes results in confusing expressions, such as the indication that chapter 3 assesses “the conditions that must be fulfilled for a consortium (including between competitors) to be exempted from the prohibition against agreements that restrict competition” (p. 23, introduction, emphasis added). Literally, this statement is incorrect, as joint bidding by consortia between non-competing undertakings does not run against the prohibition of Article 101(1) TFEU. In this case, it is possible that some word (such as “potential” competitors) is missing, but it is also possible that the guidelines are not too clearly set on the limits to the extension of the prohibition of Article 101(1) TFEU to (theoretically) potential competitors for a public contract.

This is an issue that has been recently discussed to some length,[3] and one which affects different aspects of the analysis under Article 101(1) and 101(3) TFEU that do not appear explicitly interconnected in the draft guidelines. In my view, there are two aspects that can be clarified.

First, the guidelines are not explicit in indicating how to carry out the analysis of an undertaking’s condition of potential competitor for a contract. There is just a mention to the effect that, in the assessment of “whether a company [rectius, undertaking] could [potentially] be able to bid individually, the Authority looks at whether this could constitute a sustainable economic strategy for the company (sic). This means firstly that a mere theoretical possibility of carrying out a contract is not enough; the possibility must be real and is shall include assessing that the offer must be profitable. The assessment shall be made on an objective basis” (p. 9, para 2.2).

This triggers two issues. One concerns the relevance of economic sustainability where the execution of a public contract is a one-off instance or involves a short to medium term project, where sustainability does not seem to raise particular issues or be the prime consideration. Another one concerns the assessment of profitability, in terms of the existence of economic incentives that justify potential additional investments, which requires a complex analysis of risk (discussed below 2). It seems clear that it is not sufficient to simply establish that an undertaking could have invested in additional resources to tender for the contract individually, but that it is necessary to establish that such investment was the rational economic decision to make under the circumstances (rather than engaging in a joint tender), which is always an ex post facto determination. In my opinion, great caution needs to be exercised here to avoid creating disincentives for joint tendering.

The guidelines could be improved by sketching, at the minimum, the circumstances in which the Authority would be willing to accept that an undertaking is justified in foregoing the potential investment to participate in the public tender, and the extent to which this can (and how it should) be documented. Logically, the same conditions need to justify a decision not to tender at all. If an undertaking is justified in not tendering (i.e., that is considered as the economically rational strategy), then it should also be justified in seeking collaboration. As mentioned below, this relates to an implicit duty to tender or else have a good rational for the tender hold-up, which seems more adequate for analysis under Article 102 TFEU than under Article 101(1) TFEU. In any case, difficult issues arise around any expectation or duty to participate in public tenders and the undertakings’ freedom to conduct a business under Art 16 of the EU Charter of Fundamental Rights, so careful consideration is necessary.

Second, the guidelines could be clearer in terms of the place for the establishment of counterfactual assessments. It seems that the guidelines do not consider the possibility of establishing an undertaking’s condition of potential competitor for a contract on the basis that it could have jointly tendered with undertaking(s) other than the one(s) it is eventually collaborating with. Such a possibility is only mentioned in relation with the assessment of the indispensability of an existing joint tendering agreement, where the draft guidelines indicate that, for an anticompetitive joint tender between (potential) competitors to be justified under Article 101(3) TFEU, “[t]here shall be no other economically viable and less restricting ways of achieving the efficiencies. This can be either in the form of bidding instead individually or forming a consortium with undertakings other than the ones in the current consortium” (p. 29, para 3.1.3, footnote omitted and emphasis added).

The fact that the existence of potential alternatives for collaboration is not use both to establish potential competition and the existence of potentially less restrictive forms of competition (ie, that it is not used both under an assessment of the Art 101(1) prohibition and the Art 101(3) exemption) should be welcome.

However, in my view, its use for the purposes of Art 101(3) is problematic. Once an undertaking has expressed its preference in collaborating with given consortium partner(s), it is difficult to accept the Authority’s role in second-guessing that an alternative collaboration would have been preferable (not only in competition terms, but also in business terms). The analysis of Art 101(3) TFEU should not involve this type of speculation, and it should suffice to establish that the joint bidders have not exceeded the limits required for the generation of the efficiencies derived from their agreement.

The possibility of having partnered with other undertakings seems to belong to the same logical plane as the decision not to partner with anyone (ie bid solo), or whether to tender at all. This is indicated in the draft guidelines itself themselves (see quote above), by linking the assessment of the undertaking’s ability to tender individually or to partner with other undertakings to do so. Those two decisions are equivalent in terms of establishing the undertaking’s condition of potential competitor for the contract, but they are not equally suitable for an assessment of whether less restrictive means existed, for the following reasons.

Where two potential competitors team up, then it can be argued that none of the restrictions was necessary at all and thus the assessment under Article 101(3) TFEU must fail. Conversely, where the agreement is between undertakings that would not have been potential competitors by themselves, the fact that a theoretically superior joint bidding arrangement could be conceived is irrelevant because the analysis under Article 101(3) TFEU must be limited to whether the arrangement in place generates efficiencies by the least restrictive means concerning the undertakings involved in the consortium. Considerations concerning third parties should be limited to an assessment of the fourth condition, concerning the consortium’s ability to eliminate competition for the contract—or, eventually, issues concerning infringements of Article 102 TFEU by the tenderer that could have participated solo and rather decided to ‘grab’ a partner that could have been strategic for a third party.

Therefore, it would seem more appropriate to move the assessment of the counterfactual consisting in the potential teaming with third party undertakings to the analysis of Art 101(1) TFEU with the sole purpose of establishing whether the joint tendering agreement is anticompetitive to begin with. In that setting, the circumstances in which a theoretically potential collaboration that is foregone is anticompetitive should also be clarified (as mentioned above) and, in my view, the clarification should be that such theoretical third arrangement is irrelevant.

Overall, taken together, these two issues point towards the need for more clarity in the guidelines concerning the assessment of situations where an undertaking is considered a potential competitor for a given public contract because it could have tendered for it (either individually, or in collaboration with third parties) but rather decides to team up with another potential competitor. As mentioned above, this seems to fit the framework of the rules applicable to a tender hold-up, which could be functionally assimilated to refusals to deal. In my view, developing the draft guidelines along these lines would improve them.

2. Treatment of risk-driven collaborations

The second main area where the draft guidelines could benefit from some clarification concerns the treatment of risk assessments carried out by undertakings considering the possibility to tender for a contract (either at all, or as part of a given consortium).

The first issue concerning risk-assessments that could be clarified is the extent to which they will actually be taken into account by the Authority. It seems contradictory or, at least confusing, that the draft guidelines indicate that “risk spreading is an element of the overall assessment of whether an undertaking can complete a contract on its own or whether it is objectively necessary to work with one or more undertakings” (p. 10, para 2.2) and at the same time that “[i]t will be difficult for a competition authority to make an ex post objective assessment of the risk taking on a contract … In this context, the issue of risk spreading will not necessarily be considered as an element when the Danish Competition and Consumer Authority assesses an undertaking’s capacity” (p. 11, same para). I find this difficult to understand and can see how the undertakings to which the draft guidelines are addressed may be confused. More clarity on the conditions in which the Authority will use or not internal documentation concerning risk-assessments would be desirable.

A second issue concerns the extent to which simultaneous tendering for different public contracts and their impact on the undertaking’s productive capacity features in the analysis. The draft guidelines usefully include a section on the analysis of the undertaking’s available capacity to undertake a contract and they recognise that, in some circumstances, foreseeable (recurring) commitments can be taken into account to establish that an undertaking does not have sufficient capacity to individually participate in a tender (pp. 14-15, para 2.2.4).

However, the guidelines do not seem to take into due consideration that undertakings active in procurement markets may (regularly) be tendering simultaneously for various contracts, which prospects of award are difficult to establish. In these cases, it is possible that a prudent business strategy requires the reservation of certain capacity in case the undertaking is successful in all of the simultaneous tenders (and this includes tenders which process of evaluation is live at the time of preparing the next tender), or at least a mitigation of that risk via cooperation with third parties (either by forming consortia, or through subcontracting).

Given the relevance (and, I would say, practical prevalence) of this circumstance, it would be desirable that the guidelines addressed it explicitly. Not only due to its impact on the assessment of the condition of potential competitor for a contract under Article 101(1) TFEU, but also due to the relevance that the draft guidelines give to this issue in terms of exemption under Article 101(3) TFEU (p. 26, para 3.1.1.1). In that regard, the guidelines indicate that “[i]n many cases, the risk of taking on a specific contract cannot in itself justify that companies shall not be considered competitors with regards to the contract. In such cases, risk considerations will only determine that the agreement is lawful under the competition rules if risk diversification leads to or contributes to companies submitting a better bid together than they would have been able to individually”. However, it could be that sometimes a joint bid is the only bid that potential competitors are willing to consider because their second best option is not a solo tender, but rather to withhold a tender for a contract that, if awarded, could tip them over their maximum capacity. In my view, more nuance could be introduced in relation with this aspect.

A third issue concerning risk assessment relates to the relevance given in the draft guidelines to the consortium’s expectation of competition for the contract. It is not clear to me why it would be relevant or adequate to consider that “[i]f a consortium that (sic) for instance participates in a public call for tenders where there are many participants and therefore there is effective competition for the contract, there will be greater likelihood that efficiencies are passed on to consumers in terms of lower offer price than if the consortium expects for example only another participant in the call for tenders” (p. 28, para 3.1.2). I find this inconsistent with economic theory. What is important to test the consortium’s incentives to tender aggressively (or the constraints to a limit pricing strategy) is whether they anticipate any (including only one) tender by an equally or more efficient tenderer. And, in any case, I struggle to envisage a legal test that could determine the extent to which the consortium was anticipating more or less competition for the contract. In that regard, I think that this element of risk management / strategic bidding should be clarified in the final version of the guidelines.

3. Spillover effects on exchanges of information

Given the issues surrounding the assessment of risk and the uncertainties concerning the effectiveness of using risk assessments to exclude the consideration of potential competitors of the consortium members or the existence of acceptable efficiencies in their joint tendering, the way in which the illegality of information exchanges is presented could constitute a significant disincentive for undertakings considering joint participation in public tenders.

In particular, the dissuasive effect can derive from the drafting of the paragraph that indicates that “[i]f it turns out that the undertakings that have considered entering into a consortium will themselves be able to bid for the contract and, thus, they are competitors, the information exchange that has taken place, will in fact constitute information exchange between competitors. This will be a criminal offence if the information is sensitive from a competition perspective. It is therefore important that each undertaking clarifies beforehand whether it can complete the contract individually and thus whether the undertakings are competitors” (p. 31, para 4.1, emphasis added).

It is possible that this dissuasion is mitigated by introducing more clarity concerning aspects of risk assessment identified above, in particular concerning the possibility of having teamed up with third parties and the assessment of potential capacity constraints. Otherwise, it could be advisable to provide more detail of the circumstances in which such exchange of information could lead to a prosecution.

In that regard, it would also be necessary to avoid statements that could be potentially misleading. In particular, in my view, it would be necessary to reconsider the indication that seeking legal advice could reduce the likelihood of an investigation or prosecution, not least because that could potentially run contrary to the interpretation of Article 101 TFEU by the Court of Justice of the European Union in its Schenker Judgment,[4] where it clearly indicated that “legal advice given by a lawyer cannot, in any event, form the basis of a legitimate expectation on the part of an undertaking that its conduct does not infringe Article 101 TFEU or will not give rise to the imposition of a fine”.[5]

_______________________

[1] For discussion, see here and A Sanchez-Graells, “Ski Taxi: Joint Bidding in Procurement as Price-Fixing?” (2017) 8(6) Journal of European Competition Law & Practice, forthcoming, available at https://academic.oup.com/jeclap/article-lookup/doi/10.1093/jeclap/lpx043, last accessed 07/07/2017.

[2] This is, in my view, the right general approach. See A Sanchez-Graells, Public procurement and the EU competition rules, 2nd edn (Oxford, Hart, 2015) 336-340.

[3] E.g. see here, here, C Thomas, “Two Bids or not to Bid? An Exploration of the Legality of Joint Bidding and Subcontracting Under EU Competition Law” (2015) 6(9) Journal of European Competition Law & Practice 629-638; C Ritter, Joint Tendering Under EU Competition Law (February 1, 2017), available at https://ssrn.com/abstract=2909572, last accessed 07/07/2017; and most recently, and with a consolidation of all previous debates, I Herrera Anchustegui, “Joint Bidding and Object Restrictions of Competition: The EFTA Court’s Take in the ‘Taxi Case’” (2017) European Competition & Regulatory Law Review (CoRe) 174-179, available at https://ssrn.com/abstract=2966374, last accessed 07/07/2017.

[4] Judgment of 18 June 2013 in Schenker & Co. and Others, C-681/11, EU:C:2013:404.

[5] Idem, para 41.

New analysis of joint tendering under EU competition law: a few comments on Ritter (2017)

Cyril Ritter has made a new contribution to the analysis of joint tendering for public contracts under EU competition law in this interesting recent paper. Ritter's paper goes beyond previous discussion of the topic [eg my critical remarks on Thomas (2015), see here] and proposes an alternate analytical approach in many points. I find his analysis of different 'theories of harm' applicable to joint tendering interesting and insightful, and the special criteria he suggests for negotiated procedures and for tenders where one contractor is indispensable to two or more tenderers are thought-provoking. However, there are also aspects of Ritter's proposals which I do not see entirely clear, and where I do not think his paper goes much further than previous discussion of the topic.

One of the key issues that require clarification for the purposes of assessing whether join tendering breaches EU competition law (Art 101 TFEU) as an instance of anticompetitive joint selling concerns whether the members of the joint tender are competitors or not. On that point, Ritter emphasises that "what matters here is whether they are competitors for the purpose of the particular procurement procedure at issue" (p 4). After a review of the relevant ECJ case law, Commission's guidelines and administrative practice in the area of EU competition law enforcement, he proposes that the relevant question is to assess whether a firm has "real concrete possibilities" to bid for the contract being tendered (see p. 6). In his view, the burden of proof rests with the authority, but it can be shifted where the "authority brings substantial evidence that the parties are potential competitors" (ibid). Substantively, his main test requires assessing whether the firms have independent ability to bid for the contract, which is determined by the "ability to meet the tender specifications -- in terms of having sufficient spare capacity, equipment, staff, regulatory permits, quality certifications, etc" (p. 7). Interestingly, Ritter excludes the possibility of carrying out an analysis of the undertakings' intention to bid for the contract (pp. 9-10).

At this point, Ritter reaches the need to assess the extent to which it can be objectively determined that an undertaking had the ability to bid independently for a contract for which it has decided to bid jointly with others. He points out at the disagreement between Thomas an myself (see here) concerning whether the possibility of giving up alternative projects can/should (not) be included in the analysis. Ritter considers that the discussion may be beside the point, and that the issue rather requires an assessment of "what happens when a party to the joint tender would not be able to bid on its own (perhaps because capacity is allocated to other projects), but could have done so by hiring more staff, buying or renting more equipment, or teaming up with someone else? Should it be considered a potential competitor?" (p. 8).

Interestingly, this brings Ritter's proposed test very close to Thomas', where the latter indicates that it is important not to ignore "the possibility that each undertaking might nonetheless be able to submit an independent bid, by bringing in specialist resources from outside. If it were in fact feasible for each undertaking to submit a tender in this way, then surely it cannot be excluded that a joint bid would restrict competition. The real question is rather whether, in the absence of the joint bid, there could in fact have been two or more independent bids". And, more specifically, when Thomas clarifies that "One possible approach to this issue would be to ask whether, in the ordinary course of business, each undertaking would normally bring in such resources from outside. Alternatively, and more precisely, are such resources demonstrably available on reasonable terms and in time to prepare and submit the tender, from an undertaking that is not a competitor in the procurement procedure?".

As I said when I commented on Thomas' paper, I find this line of argument exceedingly restrictive. Conceptually, because it relies on an assessment of whether the parties of the teaming/joint bidding agreement could have cooperated with other undertakings or complemented their capacities in a different way (including the need to source additional capacity from elsewhere), which fundamentally and in itself proves the point that they were unable to submit bids individually or with a total independence from third parties (including suppliers or providers of services, as well as employees, although this raises the tricky issue of the need to contain the analysis within the limits of the concept of undertaking for the purposes of EU competition law enforcement). Once this is clear, I see no good reason for the assessment to rely on whether there were alternative potential partners that joint bidders could have (independently?) teamed up with, not least because this would require an excessive amount of second-guessing by procurement and competition authorities, who may not be the best placed to query business decisions ex post facto.

Indeed, the difficulty with this line of assessment is that it would require second-guessing business strategies and preferences actually revealed by the undertaking -- which decided to participate in the joint bid with its specific partners, rather than engaging in any of the other (theoretically) possible alternative business strategies -- and compare them with an alternative scenario envisaged by the enforcement authority. Even if Ritter advises against extracting hard and fast conclusions from such an analysis (p. 9), he does indicate that "the rule of thumb is that the parties to a joint tender are competitors if it reduces the number of tenders that realistically could have been made otherwise" (ibid).

Overall, this comes to indicate the difficulties in excluding the applicability of Art 101(1) TFEU to cases of joint tendering, which are likely to be considered potentially restrictive of competition in most instances if a strict objective assessment of the joint tenderers' ability to have tendered for the contract (independently, or with others) is carried out, as proposed by Thomas and Ritter. However, this does not necessarily eschew the analysis (although it does effectively reverse the burden of proof) towards the finding of infringements, provided that the possibility of declaring prima facie restrictive joint tendering agreements exempted under Art 101(3) TFEU properly concentrates on the analysis of their efficiency. Ritter addresses this issue towards the end of his paper (pp. 15-16).

In that regard, Ritter considers that the parties to the joint tendering agreement need to be able to show that

  • the joint tender improves the value proposition to the customer, e.g. in terms of price, or, more likely, in terms of quality (first and second conditions of Article 101(3); this assessment may require giving a monetary value to non-price factors);
  • achieving those efficiencies would not have been possible through a less restrictive alternative, such as hiring personnel or equipment, or teaming up with another firm which is not a competitor (third condition of Article 101(3); this assessment may entail an element of counterfactual analysis); and
  • the joint tender does not "afford such undertakings the possibility of eliminating competition" with respect to the procurement procedure at issue, i.e. the joint tender is unlikely to be the only tender (fourth condition of Article 101(3)) (Ritter (2017) 16, emphasis added)

Once more, this test also seems rather stringent and, in particular, its second aspect can be rather problematic. In its literal reading, the equivalent condition of Art 101(3) TFEU requires that the agreement does not "impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives". A strict reading, such as Ritter's, to the effect that this requires that "achieving those efficiencies would not have been possible through a less restrictive alternative, such as hiring personnel or equipment, or teaming up with another firm which is not a competitor (third condition of Article 101(3); this assessment may entail an element of counterfactual analysis)" would create the effect of conflating the test for the application of Art 101(1) TFEU and the exemption of Art 101(3) TFEU with the logically circular and perverse implication that any teaming agreement that is found prima facie restrictive and in breach of Art 101(1) TFEU because the parties could have sought additional personnel or equipment, or teamed up with a third party (itself not a competitor), is also necessarily excluded from exemption under Art 101(3) TFEU precisely because of those reasons.

The need to distinguish the elements for an analysis under Art 101(1) and Art 101(3) TFEU when the assessment includes the need to consider potential competition triggers some difficult issues. In the context of public procurement, this requires settling whether the assessment of the need for the (potential) competitive restriction implicit in the joint tender to generate the claimed efficiencies is, either (a) limited to the agreement under analysis, or (b) should also include the potential alternative business strategy which (theoretical) existence brought the joint tendering agreement under scrutiny in the first place. Existing European Commission Guidelines on  the application of Article 101(3) of the Treaty can provide a framework for this analysis.

The key part of the Art 101(3) TFEU Guidelines is para [76] and, more precisely, the consideration that "It is particularly relevant to examine whether, having due regard to the circumstances of the individual case, the parties could have achieved the efficiencies by means of another less restrictive type of agreement and, if so, when they would likely be able to obtain the efficiencies. It may also be necessary to examine whether the parties could have achieved the efficiencies on their own" (emphasis added). Applied to the specific point, I read this to require an assessment of whether a less restrictive agreement between the same parties would have allowed the joint tender and, potentially, whether they could have generated the same efficiencies (strictly) on their own, quod non because of the previous determination that they would have needed "hiring personnel or equipment or teaming up with a non-competitor" -- which in my view does not fit the counterfactual of an analysis of the ability of the party to bid for the tender all things being equal, which would have determined its classification as an actual competitor. My objection is that proceeding in the way Ritter suggests (ie considering the potential scenario of alterative business strategy both at Art 101(1) and Art 101(3) stages) would create, if not a circular or self-referential logic, at least a double whammy for the joint tenderers because their condition of potential competitors would not only be used to bring their agreement under Article 101(1) TFEU, but also to exclude its exemption under Article 101(3) TFEU -- which does create substantive analytical conflation in my view.

In my opinion, an alternative analysis is preferable, to the effect that 

... undertakings concluding joint bidding and teaming agreements should be able to prove that they can only submit a compliant tender if they participate together, or that the terms of their joint tender are substantially better for the public buyer than those they could offer independently—ie, that there are specific and measurable efficiencies derived from the teaming or joint bidding strategy and that they are passed on to the public buyer. For their part, contracting authorities will need to be on the lookout for potential negative impacts on competition in the market, as well as the inclusion of unnecessary restrictions in the teaming and joint bidding documents (A Sanchez-Graells, Public procurement and the EU competition rules, 2nd edn (Oxford, Hart, 2015) 339, footnote omitted and emphasis added).

Or, in other words, I think that -- for the purposes of the application of Art 101(3) TFEU -- the analysis needs to rest on whether the joint tenderers have limited their collaboration to what was necessary to create the efficiency of their joint bid, or have rather improperly taken that chance to further restrict competition amongst them. But it should not revisit the same theoretical counterfactual analysis that brought the agreement under Art 101(1) TFEU scrutiny to begin with.