The Romanian Competition Council (the “RCC”) recently published its draft “Guidelines on competition rules for participation in public tenders” (the “Draft Guidelines”). The purpose of the Draft Guidelines is to offer guidance for compliance with competition law when making a bid in the form of a consortium in a public tender procedure. The Draft Guidelines provide important clarifications on the RCC’s position on bidding through consortia, and bidders are advised to take note of the RCC’s stance as reflected in the Draft Guidelines. The RCC places particular emphasis on:
- the purpose, scope and membership of consortia: in particular, the RCC’s view is that consortia should be resorted to primarily when necessary to ensure that SMEs or new market entrants which could not have otherwise participated in the public tender combine their resources and therefore make an offer superior in terms of quality, innovation or lower prices;
- what the RCC views as acceptable cases of tender consortia which do not restrict competition (i.e. consortia between non-competitors or between affiliated undertakings are likely to be viewed as more acceptable than consortia between competitors);
- the conditions to be met when a consortium agreement is entered into between competitors for the purpose of participating in a public tender, specifically that such a consortium agreement may be entered into between competitors when:
- none of the consortium members would be able to individually satisfy the conditions of the tender;
- no subgroup of any of the consortium members would be able to individually satisfy the conditions of the tender;
- exchange of information between the members of the consortium is limited to that strictly necessary for making the bid and performing the agreement;
- the consortium members compete in normal market conditions in all other respects.
- sensitive matters to be considered by consortium members which may potentially trigger competition constraints (irrespective of whether consortia are set up between competitors or non-competitors) e.g. exchange of strategic information (including indirect information exchange or “hub and spoke” / “ABC” arrangements);
- assessment criteria used by the RCC when evaluating the legality of a consortium arrangement.
Although designed to address potential competition issues regarding consortia and consortium agreements, the rules are likely to affect also other participants in public tenders, such as subcontractors or third party supporting entities, in particular in relation to issues regarding indirect exchange of strategic information.