On 17 April 2019, the Italian Competition Authority ("ICA") closed the investigation launched into alleged bid rigging in the facilities management market. The ICA found that the parties entered into a single, complex and continuous agreement aimed at allocating the 18 lots of a tender held in March 2014 by the country’s state procurement agency Consip S.p.A. for facilities management services. The fines imposed totalled €235m.
| what you need to know - key takeaways |
- Importance of leniency applications: The information provided to the ICA was found to be decisive in establishing the infringement. The leniency applicant was granted a 50% reduction on a fine originally amounting to €80m.
- Relevance of investigations carried out by different authorities: The ICA based its decision also on the evidence gathered by the prosecutor of Rome - which is conducting a criminal investigation into the same tenders – that it would not have been otherwise empowered to gather.
- Strict approach to bid-rigging: The bid rigging in question was considered an infringement by object; the fact that the relevant tender had been suspended, and therefore no contract had been awarded, had no relevance in the assessment of the conduct.
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In March 2017 the ICA launched an investigation into possible bid rigging in the Italian market for facilities management services. Particularly, the ICA investigated the conduct of six companies (together with their parent companies) and two consortia that unlawfully participated in the tender held in March 2014 by the country’s state procurement agency Consip S.p.A. for the cleaning and management services for all public buildings in Italy. The tender covered 18 lots divided on geographical basis and had a value of €2.7b.
The ICA based its assessment, inter alia, on the evidence gathered through a leniency application filed after the opening of the proceedings and on the documentation acquired by the prosecutor of Rome - which is conducting a criminal investigation into the same tender (including evidence that it would not have been otherwise empowered to directly gather, e.g. wiretapping). This evidence showed that the parties had regularly met and exchanged sensitive information in order to allocate the 18 tender lots between them. Moreover, the ICA reconstructed the participation pattern of the parties to the tender by simulating the possible outcomes of the tender if one of the parties (namely the temporary grouping of companies led by the leniency applicant) had not withdrawn its offer and if the tender had not been suspended. This simulation showed, according to the ICA, the existence of an allocation strategy based on a perfect "chessboard pattern", that had no alternative and rational explanation than the collusion.
Companies should take note that:
- in light of other recent cases relating to bid rigging, the ICA is increasingly examining the outcomes of tender processes, or the participating patterns, as evidence in order to assess whether there has been an infringement;
- the ICA is taking into account, as evidence of collusion, the use of temporary groupings of companies that appear unnecessary (the companies being theoretically able to submit individual offers) and of sub-contracts (which were used by the parties in order to obtain compensation in cases in which officially a lot was awarded to another party); and
- bid rigging is confirmed to be a very serious infringement, leading to the imposition of a basic amount of the fine corresponding to nearly the maximum percentage set by the ICA (in this case, 22.5% out of the maximum of 30% provided for by the ICA's guidelines).
With thanks to Sabina Pacifico of Ashurst for her contribution.
