Within very short period, the Competition Council has published two decisions (decision No. E02-24 of 24 May 2013 and decision No. E02-31 of 17 June 2013) related to restrictive agreements where procurement bids have been coordinated. Both decisions confirm the opinion previously expressed by the Competition Council:
- One and the same person may not prepare several competing bids in public procurement because, in the view of the Competition Council, where one and the same person prepares commercial information on several companies, plans of one company inevitably become known to the other company. The Competition Council considers that this situation violates the prohibition on sharing details of competitors’ operation (omission of activities) that may affect the activities of a competing market participant.
- Additionally, unauthorised activity by company employees or other hired parties can cause adverse consequences. The Competition Council considers that companies are responsible for keeping business secrets from other companies – competitors. Companies must ensure that persons to whom they provide their commercial information do not disclose it. In detecting a restrictive agreement (concerted action), the Competition Council can follow the activities of employees or other persons who obtained commercial information.
Taking into account that decisions of the Competition Council can be appealed in court, at present it is not known whether both these decisions are the last word on these competition law aspects in the context of public procurement.