Competition Law Implications for Joint Bidding During Public Procurement

In 2023, the European Commission adopted revised Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreement, following a thorough evaluation and review of the Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements. The chapter of the Guidelines on commercialization agreements was expanded to include a new section on bidding consortia and guidance on the distinction with bid rigging. The Commission proposed to use the term “bidding consortium” for simplicity instead of “joint bidding”. Public procurement and competition law aim to achieve similar goals. Coordinated actions of competitors may jeopardize the outcome of public procurement. This is particularly the case when several potential suppliers attempt to join forces in a public procurement. In the article, the authors analyze the legal framework of the EU Member States for assessing proposals resulting from joint activities and bidding. Particular attention is paid to the regulatory and practical constraints faced by suppliers and contracting authorities.