Since the beginning of 2015, Poland’s Office of Competition and Consumer Protection (UOKiK) has issued 8 decisions in bid-rigging cases, while another 34 proceedings are ongoing. In one, UOKiK’s branch office in Lublin has issued a detailed justification of charges to the enterprises involved.

According to OECD estimates, as a result of collusion, customers can pay upwards of 20 percent higher prices than when competition between bidders remains undistorted. This renders public spending less efficient, which ultimately takes its toll on taxpayers. It is also why the detection and elimination of collusive bidding remains one of UOKiK’s goals.

According to the Act on competition and consumer protection, agreements between undertakings entering a tender, particularly in the scope of work or money, are prohibited, as are agreements between enterprises and the undertaking organising the tender conditions. In the vast majority of cases UOKiK decisions on collusive tendering are upheld by the courts. In an 18 April 2016 ruling, the Court of Competition and Consumer Protection (SOKiK) confirmed the existence of an agreement between the participants of a tender for services for cleaning roadways and maintaining roadside greens managed by the General Directorate for National Roads and Motorways. The collusion consisted in the enterprise that had won the bid opting not to sign the contract with the customer. As a result, the customer was forced to sign a contract with another enterprise in the collusion at a higher price.

It should be noted, however, that not every case of dishonest conduct perpetrated by the participants in a tender may be subject to an UOKiK intervention. For example, the assessment of the activities of tender participants offering bribes or other kickbacks or intending to mislead the bid organiser as to the quality of products does not fall within UOKiK’s remit. The Authority is likewise not spurred to act when a contracting party fails to adhere to procedures under public procurement law, or when one bidder is favoured. Competition law does not require enterprises to conduct tenders or to choose the most advantageous offer. Other laws, however, may — for example, ones in place to ensure public funds are properly managed.

Organisations other than UOKiK may also become involved when irregularities are spotted in tenders. These include the Public Procurement Office, the Internal Security Agency, The Central Anti-corruption Bureau, and the prosecutor's office. Consequently, there can be various sanctions for participation in collusive tendering – including revocation of the tender (Public Procurement Office), fines (UOKiK) or imprisonment (courts). It is of key importance that the various authorities work together and directly exchange information at the earliest stage of suspected irregularities. The lack of such cooperation may in fact make it more difficult or even impossible to acquire the evidence required for proceedings and to prove that collusion has occurred.

UOKiK may intervene only when the irregularities in a tender concern common arrangements between bidders which are intended to or have the effect of restricting competition.

Additional information for the media:

Press Office, UOKiK
Pl. Powstańców Warszawy 1, 00-950 Warsaw
Phone.: +48 22 827 28 92, +48 22 55 60 314, +48 22 55 60 430
E-mail: [SCODE]Yml1cm9wcmFzb3dlQHVva2lrLmdvdi5wbA==[ECODE]

Twitter: @UOKiKgovPL