The Commission for Protection of Competition has adopted new Guidelines for countering bid rigging in public procurement procedures
By Decision № 972/19.11.2020 the Commission for Protection of Competition has adopted new Guidelines for countering bid rigging in public procurement. The decision repeals Decision № 570/20.05.2010 for the adoption of the first Guidelines for countering bid rigging. The development of public relations has led to many changes in the public procurement legislation on both national and EU level. The European Parliament and the Council have adopted Directive 2014/24/EU and Directive 2014/25/EU. These acts have been transposed into the Bulgarian legislation by the Public procurement act, published in Official Journal №13 from 16.02.2016, and by the Implementing regulations for this act, adopted by Order of The Council of Ministers №# 73/05.04.2016.
The changes in the public procurement legislation have led to the necessity of updating the CPC’s Guidelines, reflecting the good practices of other EU member states and the recommendations of the Organisation for Economic Co-operation and Development (OECD).
The new Guidelines update and clarify a number of texts of the previous guidelines. For this purpose, the CPC has analyzed the changes in the regulatory framework. At national level new tendering rules and obligations for the contracting authorities have been introduced, including the obligation to notify the Commission for Protection of Competition in case of suspicious anticompetitive behavior.
Countering bid rigging should be carried out in the first place by the contracting authorities. It is of prime importance that public procurement tenders are being organized and conducted in a way that impedes the coordination between candidates. By way of preventing public procurement manipulations, the Commission has drawn up a list of recommended measures for contracting authorities resulting in lower risk of anticompetitive agreements. These measures reflect the good practices and guidelines of EU member states and the recommendations of The OECD.
The current legislation puts in place an obligation for contracting authorities to notify the Commission where there are reasonable grounds to suspect anticompetitive behavior. In order to facilitate the contracting authorities in carrying out this obligation the CPC has listed the main competition problems that may come up during public procurement procedures, the possible factors that contribute to bid rigging, and also a list of indicators of anticompetitive behavior. It shall be noted that identifying any of these indicators can only raise suspicion of bid rigging, but cannot be an evidence of anticompetitive agreement. The cooperation of contracting authorities by notifying and providing all the information needed to the Commission is of prime importance.
By virtue of the Law on protection of competition (LPC), bid rigging in public procurement procedures qualifies as a form of cartel between undertakings that is an infringement under art. 15 of the LPC and/or art. 101 of the Treaty on the functioning of the EU (TFEU). To undertakings participating in such infringements the Commission can impose a pecuniary penalty of up to 10% of the undertaking’s total turnover for the previous financial year.
The full text of the decision is available in the public electronic register of The CPC on the following address: http://reg.cpc.bg