Collusion in public procurement consists in the manipulation of bids by competitors, through illegal agreements, with the aim of distorting competition in award procedures.

These practices allow “pre-determined” competitors to enter into contracts with contracting entities, under the deliberate illusion that the respective public procedures took place in a strictly competitive manner.

According to the European Commission, it is above all in essential economic sectors, such as construction, information technology or health, that collusion is more frequent.

Collusion between economic operators is prohibited by the Treaty on the Functioning of the European Union (TFEU) and the existence of sufficiently plausible evidence of collusion is a reason to exclude an economic operator from a public procurement procedure.

In Portugal, the Public Contracts Code (CCP) provides that the existence of strong indications of acts, agreements, practices or information likely to distort the competition rules is a cause for exclusion of the proposals. The exclusion of any proposals on such grounds, as well as the existence of evidence of practices restricting competition, even if they did not give rise to the exclusion of the proposal, must always be communicated to the Competition Authority.

On this subject, the European Commission published its Guidelines, through Communication No. 2021/C 91/01, of 18 March.

Here we explore some implications for competing economic operators, highlighting the most common illegal practices, the signs that contracting entities may pay attention to, the special situations involving companies in a group relationship, and the temporal exclusion of competitors.

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