The Danish Competition and Consumer Authority (the “DCCA”) has published 39 pages of guidelines so as to explain the business in which situations cooperating through consortia, sub-contracting or other arrangements can amount to illegal joint bidding. The guidelines are an important document for businesses and competition law practitioners across the EU as they reflect how competition authorities in the EU should be enforcing competition law with respect to joint bidding. There are 11 guidelines for businesses, as discussed below,
If you are in doubt, seek legal assistance.
If you can do it yourself, then why partner up: which basically says that if you are in a position to bid for the contract alone without joining forces with a competitor and if the customer is better off with you bidding alone with a competitor instead of joint bidding, then you need to give a good reason to team up with somebody.
Advice for businesses when considering joint bidding: before you start the discussions with the potential bidding partners, you need to flesh out reasons for submitting a joint bid as opposed to bidding on your own and how teaming up with the bidding partner will benefit the contracting authority by way of a more valuable offer.
Clarify if the call for tenders gives the possibility of submitting bids for parts of the contract.
Make a realistic assessment of whether your company already has the capacity or whether it could be a sustainable economic strategy to expand the capacity to the one that would be necessary to bid alone.
Determine your own company’s capacity before you start talks with other companies about establishing a consortium to bid for contracts.
Do not exchange competition sensitive information with other companies before it is clear whether you are competitors in relation to the contract.
If you are actual or potential efficiencies (qualitative or quantitative) shall benefit consumers and must at least compensate the restrictions on competition.
Ask how is joint bidding beneficial for the customer, instead of being beneficial for yourself. The onus is on you to determine why the contracting authority benefits from the joint bid and particularly why joint bidding is the only way you can provide these benefits to them.
Make sure not to include more companies than are necessary to fulfill the contract.
Do not exchange more information than necessary for the particular contract the consortium is established to fulfill.
For more details, readers can refer to:
This post has been authored by Aastha Sharma, a Third Year Student of West Bengal National University of Juridical Sciences, Kolkata.
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