How to spot inadmissible bid-rigging agreements - Bundeskartellamt publishes guidance document for contracting entities

Today the Bundeskartellamt has published a guidance document on how to uncover bid-rigging agreements. A check list including typical indicators aims to help contracting entities recognise indications of possible agreements among companies in the context of award procedures.

Andreas Mundt, President of the Bundeskartellamt: "Prosecuting authorities and competition authorities depend on the cooperation of the contracting entities. It is very difficult to uncover bid-rigging agreements without having relevant information as the participating companies usually take great care to cover up their illegal agreements. In previous proceedings concerning e.g. the fire-fighting vehicles cartel and the rail cartel, we have seen that certain indicators may be identified in award procedures which can give rise to the initial suspicion of illegal agreements."

According to the list contracting entities should check whether the different bids are similar in their design, whether there are any indications that the bidders have knowledge of the bids submitted by the other bidders or whether certain bidding patterns are discernible. Of course not every conspicuous element in the bidding documents will be the result of an illegal agreement. Nevertheless, when in doubt it can be useful to inform the Bundeskartellamt or the competition authority in the respective federal state of a suspicion.

In contrast to other violations of competition law, bid rigging is a criminal offence. In such cases the Prosecutor's Office and the competition authorities share competencies: Individuals responsible are liable to imprisonment or a fine pursuant to Section 298 of the German Penal Code. They fall under the competence of the Prosecutor's Office. The competition authorities are competent for the prosecution of the companies involved and can impose heavy fines. The authorities cooperate closely with one another in the investigations.

To strengthen the prosecution activities the Bundeskartellamt hosts regular meetings in which competition authorities and public prosecutors from across Germany exchange their experiences. This dialogue within the "Netzwerk Submissionsabsprachen" (network on bid-rigging agreements) serves to achieve synergy effects in the fight against bid-rigging agreements and to further increase the quota of uncovered violations. The experiences gained by the prosecuting authorities involved have been incorporated into the guidance document.

The guidance document is available here (in German)