Anti-competitive actions in the form of correction of the results of tender, bids, auctions, competitions: problems of proof

The article examines signs of anti-competitive concerted actions in the form of distortion of the results of tenders, auctions, competitions, and bids (hereinafter referred to as tenders). It is taken into account that scientists attribute to the special characteristics of anti-competitive concerted actions the fact that they are always committed by a group of persons, are repetitive, can have both a national and international scale, and pose a danger to the functioning of the market economy in general and the existence of free competition in particular. The study systematizes a list of signs and circumstances which, in the opinion of the Antimonopoly Committee of Ukraine and its bodies (hereinafter referred to as the AMCU), may indicate the existence of certain agreements between participants in tenders and coordination of actions between them. These include regular provision of repayable financial assistance; active business transactions; joint use of office and warehouse premises; use of the same IP addresses to participate in tenders, submit tax reports, log into online banking systems, and use shared software to prepare tender documentation; shared employees; simultaneous submission of tender proposals; applying for bank guarantees on the same day; similarity of technical parameters of electronic documents, as well as telephone communication between the managers of tender participants. At the same time, these signs and circumstances are determined within the framework of one of the AMCU’s tasks – participation in the formation and implementation of competition policy in terms of control over concerted actions of economic entities. It is obvious that the circumstances established by the AMCU on the basis of evidence, in the event of an appeal against the AMCU’s decision, must be investigated and assessed by the court, taking into account the general theory of evidence and proof. Therefore, special attention is paid to the institution of evidence in this category of cases. After all, in the vast majority of cases, evidence of such circumstances is indirect. And conclusions about the presence of signs of anti-competitive concerted actions are formed in the presence of doubts about such a fact, assumptions, and probabilities. Which is unacceptable. Therefore, in order to prove a certain fact, the body of circumstantial evidence must be such as to eliminate any doubts, any assumptions, any probabilities.