Rachel Scheele, Grith Skovgaard Ølykke

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 139 - 149

This article analyses the application of competition rules to abnormally low tenders. The purpose is to determine whether – and under which circumstances – abnormally low tenders may constitute violations of Articles 101 and 102 TFEU, as well as how contracting authorities may or should proceed in case of potential infringements of competition law. It is concluded that abnormally low tenders may indeed violate EU competition law, which can lead to distortions of competition in public procurement markets in the short and/or long run, resulting in a decrease of social welfare. The parallel existences of the two sets of rules that regulate low prices – but which do not entirely coincide – do not seem to facilitate enforcement of competition law violations, which is crucial to obtaining efficient public procurement. Some proposals for a more competition-oriented approach to abnormally low tenders are provided. Keywords: Article 101 TFEU; Article 102 TFEU; Directive 2014/24/EU; bid-rigging; predatory pricing; principle of equal treatment

Penelope Giosa

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 3, Page 185 - 194

Bidding consortia may be very beneficial to the public sector, but at the same time they can serve as bid rigging devices to eliminate competition. This article discusses illustrative European cases involving consortia or cooperative joint ventures between undertakings taking part in a public procurement procedure. It looks at the European Commission’s Revised Guidelines for the assessment of horizontal co-operation agreements 2022, considering whether they clarified how economic operators can submit joint tenders without infringing EU competition law. Keywords: bid rigging; collusion; joint bidding; bidding consortia; horizontal guidelines

Penelope Giosa

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 39 - 51

This article argues that the prevention of bid rigging has not been factored into the policy design of the EU Public Procurement Rules in a systematic and consistent way. As it will be shown, the critical junctures of EU Public Procurement Rules did not emerge alongside the anti-cartel legislation in Europe, but entirely independently of the latter. As a result, the current European Public Sector Directive 2014/24/EU is not adequately collusion proof and there is still a long way to go. Keywords: bid rigging; collusion; EU Procurement Directives; competition; transparency

Penelope Alexia Giosa

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 1, Page 30 - 38

Splitting large public contracts into lots fosters competition in the long and short run, and enhances the participation of small and medium enterprises (SMEs) in public procurement proceedings. However, the division of contracts into lots can also facilitate anticompetitive practices, such as bid rigging. In order to deal with this, economic theory has established two basic rules. The first one is that the number of lots should be smaller than the expected number of participants. The second one is that the contracting authorities should define at least one lot more than the number of incumbents and reserve it to new entrants. This paper discusses these rules and investigates to what extent they can indeed cope successfully with bid rigging. As it will be proved, they are not panacea for all cases of bid rigging and it is not always practically possible to apply them. Therefore, they need further elaboration and amendments. Suggestions will be made about how we could make them more effective. Some of these recommendations are based on ideas taken from the legal regime of USA.