Until now, companies in the activities of which the Competition Council found signs of a prohibited agreement or cartel were also banned from participating in public procurement for a year. At the same time, the contracting authority may evaluate the technical, organizational and personnel management measures implemented by the company in order to decide on the "restoration" of the company's lost credibility and thus, despite the ban, allow the company to participate in the procurement. "Restoration of credibility" could become particularly relevant next year, when amendments to the Public Procurement Law will come into force, which stipulates that companies are banned from participating in public procurements for three years for participating in the cartel.
Restoration of trust - an opportunity to improve and participate in procurement
In addition to the contracting authority's assessment of the restoration of the company's lost "credibility", the Competition Council (the CC) is entitled to provide its independent opinion on the company's activities at the request of the company or the contracting authority. Contracting authorities, together with other information available to them, may or may not take the opinion of the CC into account when deciding on the participation of the tenderer in the public procurement.
The possibility for the contracting authority to decide whether the company has sufficiently improved and restored the lost credibility is provided for in Article 43 of the Public Procurement Law and Article 49 of the Law on the Procurements of Public Service Providers.
In order to assess the measures taken by the company involved in the cartel to prevent similar infringements in the future, the Competition Council may give a positive or negative opinion on the measures taken to restore the lost credibility. In order to obtain a positive opinion from the authority on the actions taken to prevent similar infringements in the future, the penalized company must take a number of steps:
- Cooperate with the Competition Council during the investigation and after the decision has been made;
- The fine imposed by the Competition Council must be paid to the state budget;
- Develop a Corporate Competition Law Compliance Program, guidelines, and designate a person responsible for the implementation and regular updating of the program;
- The company should introduce the practice of educating employees about competition law and its observance;
- Damages caused by the violation must be compensated if the victim has requested a compensation.
The Competition Council may assess and provide an opinion on the activities implemented by the company to “restore lost credibility” even in cases when all the above criteria have not been implemented simultaneously and immediately. The company's actions are assessed in context. Notwithstanding the opinion of the Competition Council on the activities carried out by the company, if the contracting authority considers that the measures taken are not sufficient to restore credibility, it may decide to exclude the tenderer from further participation in the procurement procedure.
New criteria for excluding companies from procurement
As of January 1, 2023, amendments to the Public Procurement Law will come into force, which stipulates that companies will be banned from participating in procurements for three years instead of one year. At the same time, contracting authorities will be able to decide on the participation of the company involved in the infringement, notwithstanding the ban, if the company has taken the necessary steps to "restore lost credibility".
Also, the amendments to the Public Procurement Law stipulate that a new exclusion criterion will apply from next year, according to which the contracting authorities will be able to exclude the company from participation in the procurement. Namely, the contracting authorities will be able to exclude the tenderers from the procurement not only in cases when the decision of the Competition Council on the cartel has become an irrevocable agreement, but also in cases when the contracting authority finds indications in the specific procurement application or tender. In this case, the contracting authority should consult with the Competition Council and received the authority's opinion on the possible cartel. In this case, if the contracting authority's suspicions about the possible involvement of the tenderers in the cartel are confirmed, the contracting authority will be able to make a decision to exclude the tenderer from participation in the specific procurement.