Spotlight on Italy: IAA action against bid-rigging
Published on 7th March 2016
In recent years, the Italian Antitrust Authority (IAA) has focused particular attention on bid-rigging (i.e., the coordination between companies participating in public bids), on the basis that this form of anti-competitive behaviour is capable of seriously affecting public finances and diverting resources from uses that could help stimulate the Italian economy as a whole. More than half of the IAA’s anti-trust proceedings closed in 2015 concerned bid-rigging.
Public bids
From January 2015 to date, the IAA has investigated and imposed fines in respect of anti-competitive agreements concerning, inter alia, postproduction services for RAI (the Italian public broadcaster), materials and services for Trenitalia (the leading railway operator) and catering services on the motorway network.
In the recent months, the IAA has concluded two further investigations relating to public bids.
On 22 December 2015, the IAA adopted a decision against three companies (Manutencoop Facility Management, Roma Multiservizi and Kuadra) and the Consorzio Nazionale Servizi for bid-rigging, in violation of Article 101 of the Treaty on the Functioning of the European Union (TFEU). The IAA imposed a total fine of €110 million on the companies involved. The companies had restricted competition by influencing the outcome of an EU tender process, worth in total €1.63 billion, conducted by Consip, the central PA contracting authority, for the procurement of cleaning services for schools across Italy.
Moreover, on 18 November 2015, the IAA adopted a decision against 12 undertakings – Tecnosit, TPS Taranto, SIMAN, Maren, Chio.me Consortium, Serveco, Coibesa Thermosound, Technomont Taranto, COMERIN, Work Service, Mealblok, Ecoedil Professional and SAIT – for their participation in a bid-rigging cartel, in violation of Article 101 TFEU. The cartel related to tenders conducted by the Italian Ministry of Defence for the disposal of hazardous materials (asbestos) present in the military arsenals located in the cities of Taranto, La Spezia and Augusta.
According to the IAA, the 12 undertakings colluded to agree on the allocation of tender lots between 2011 and 2013. This conduct led to market-sharing and the preservation of the companies’ incumbency positions, as well as to a steady reduction of the rebates offered to the Italian Ministry of Defence. The IAA imposed a total fine of more than €3 million, which amounted to single fines equal to almost 10% of the total turnover of each undertaking concerned, the maximum that can be imposed by law.
Finally, in light of these concerns around bid-rigging, the IAA has taken a very strict position in relation to temporary collaborations or associations between companies in order to bid for tender contracts on a joint or multi-party basis. In general terms, the IAA will only regard such collaborations as lawful where the individual participants do not themselves meet the criteria required by the invitation to tender or are not able to carry out all the services required by the contracting authority. In other words, companies must bid on an individual basis unless it is manifestly necessary for them to partner with other companies in order to meet the public body’s tender specifications.
