Since 1992, the companies Acciona Construcción, S.A., Dragados, S.A., FCC Construcción, Ferrovial Construcción, Obrascón Huarte Lain, S.A. and Sacyr Construcción, S.A. met weekly, analyzed and decided on the public contract tenders in which they were going to share technical work for their bids. They also exchanged information on their bidding strategy for public tenders. Additionally, in their weekly meetings, the companies exchanged sensitive commercial information (other than that necessary to share the works), for example, their intention to bid or not to bid for tenders, or the intention to form temporary joint ventures (UTE) and the members that would integrate them.
These conducts constitute a very serious infringement of Articles 1 of Law 15/2007, of July 3, 2007, on the Defence of Competition and 101 of the Treaty on the Functioning of the European Union.
Effects of anti-competitive behaviours:
- The collusive agreements sanctioned resulted in a lower variety and quality of the technical offers submitted by the companies to the contracting Administrations.
- The competing companies that bid for public contracts found themselves at a competitive disadvantage against the group of cartelized companies, since they had to incur a higher cost for the preparation of the technical proposals. Moreover, since they did not have the same strategic information as the companies in the collusive agreement, the terms of fair competition among all bidders were altered.
- The large number of works that were carried out under these collusive agreements greatly increased the amount of money involved in such works. Reiterative practice that caused a prolonged duration in time of the anticompetitive conducts.
CNMC Decision (S/0021/20 – 5 July 2022):
The companies have been imposed financial penalties and banned from contracting with the Administration. In fact, the CNMC has imposed fines totalling 203.6 million euros: Acciona Construcción, S.A. (29.4 million), Dragados, S.A. (57.1 million), FCC Construcción (40.4 million), Ferrovial Construcción (38.5 million), Obrascón Huarte Lain, S.A. (21.5 million) and Sacyr Construcción, S.A. (16.7 million) for having altered thousands of public tenders for building and infrastructure civil works over 25 years.
These are anti-competitive practices whose effects have been particularly harmful to society, as they affected thousands of tenders issued by Spanish public administrations for the construction and building of infrastructures such as hospitals, ports and airports, roads, etc.
A contentious-administrative appeal may be lodged directly with the Audiencia Nacional against this decision within two months of the day following its notification.
CNMC Press release (Spanish only): https://www.cnmc.es/prensa/sancionador-obra-civil-20220707
Ángel Valdés Burgui
Lupicinio International Law Firm