Competition Buzz: Failure of Spanish Law to Prevent and Correct Bid Rigging in Public Procurement

By: Antonio Lopez Mino & Patricia Valcarcel Fernandez

Does the Spanish Public Procurement law offer any remedy against bid rigging that authorities can implement within a contracting procedure? To be honest, there are not legal weapons to use in case that signals of collusive practices were put forward by other bidders or found out by the officials, apart from the duty to communicate those evidences to the (regional or national) Competition Authority. This last issue has two dramatic drawbacks. First, it exemplifies Public Procurement law lack of autonomy, needed to ask Antitrust law for assistance to face a vital danger. Second, it assumes that the contracting procedure must end and award the contract before sending the application to the Competition Authority.

This paper analyzes the Spanish Public Procurement Code (the TRLCSP) to find inside remedies against bid rigging. It also digs into the scarce EUCJ on the subject. As a principal matter of study, the Proposal for a Directive on public procurement (consolidated version) offers a scheme of preventive self-declarations for economic operators and exclusions for bidders incurring in collusion.

Full Content: SSRN

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