Spotlight on Italy: IAA action against bid-rigging

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. Please click here to read the Italian version. 

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.