Two Bids or not to Bid? An Exploration of the Legality of Joint Bidding and Subcontracting Under EU Competition Law

Joint bidding and subcontracting offer the potential for substantial economic benefits, but are also widely associated by competition authorities with cartel conduct. Assessing whether joint bids restrict competition involves consideration of various complex factors, and the proven benefits for consumers may then need to be assessed as well. Customer consent is informative about the compensating benefits of joint bidding but is not always decisive. Subcontracting arrangements concluded before contract award need cautious appraisal, especially if undeclared at the time of the tender, while arrangements negotiated after award are often legitimate.