June 2, 2021, 9:00 Eastern US, 14:00 UK, 15:00 CET
Join a free hourlong webinar with King’s College, London and George Washington University Law School to discuss a key development in anti-corruption and procurement – competing strategies in Europe and the United States to combat bidder collusion. While the United States has focused on classic antitrust enforcement, the European Commission has encouraged member states to address collusion through established procurement rules, and (as Professor Alison Jones has suggested) the United Kingdom may take a different, more integrated approach to corruption and collusion as its procurement system is rebuilt after Brexit. At the same time, the European Commission has proposed sanctioning contractors that receive foreign subsidies to win major procurement contracts outside the defense sector (see Albert Sanchez-Graells’ comment). Taken together, these divergent enforcement strategies create new and complex compliance challenges for businesses working in U.S. and European procurement markets.
Panelists
Michael Bowsher QC – Co-Moderator – Michael Bowsher, of Monckton Chambers, London, regularly handles leading public procurement and competition law matters in the United Kingdom and Ireland; he is also a visiting professor at King’s College, London, where he teaches on European and global public procurement law and policy.
Juliette Enser – UK Anti-Cartel Initiatives – As a Senior Director in the United Kingdom’s Competition and Markets Authority (CMA), Ms. Enser has overall responsibility for the CMA’s cartel investigations. Following Brexit, the CMA has taken on responsibility for investigating larger cross-border cartels previously reserved to the European Commission.
Daniel W. Glad – U.S. Procurement Collusion Strike Force – With many years of experience as an investigator and attorney handling antitrust investigations, Mr. Glad now directs the Procurement Collusion Strike Force, U.S. Department of Justice, Antitrust Division, a nationwide, interagency partnership between the U.S. Department of Justice and other federal law enforcement agencies, to investigate and prosecute antitrust crimes that affect government grants and procurement.
Dr. Wojciech Hartung – European Commission’s Anti-Cartel Initiative – Both inside government and now in private practice at DZP Warsaw, Wojtek Hartung has extensive experience on issues of public procurement and cartels. With Katarzyna Kuźma, he is the co-author of Combating Collusion in Public Procurement. Legal Limitations on Joint Bidding (Edward Elgar, 2020).
Professor Alison Jones – Next Steps in UK Anti-Cartel Policy – Professor Jones, of King’s College, London, an internationally recognized authority on fighting corruption in procurement, is most recently the author of Combatting Corruption and Collusion in UK Public Procurement: Proposal for Post-Brexit Reform (Mar. 2021).
Professor William Kovacic – U.S. Anti-Cartel Policy in an International Context – William Kovacic is the Global Competition Professor of Law and Policy and Director of the Competition Law Center at GW Law. He previously served stints as the chairman and general counsel of the U.S. Federal Trade Commission, and he has been a leading voice for international cooperation in antitrust policy.
Professor Albert Sanchez-Graells – Understanding EU Bid Rigging Policy – Albert Sanchez-Graells is a Professor of Economic Law at the University of Bristol Law School and a Member of the European Procurement Law Group. He contributed initial comments on the European Commission’s 2021 Bid Rigging Exclusion Guidance, as well as earlier papers on the topic here, here, here and here.
Assistant Dean Jessica Tillipman – Co-Moderator – Jessica Tillipman directs the Government Procurement Law program at GW Law, which was founded in 1960 and is one of the world’s leading programs. Dean Tillipman teaches on anti-corruption and compliance, and lectures, nationally and internationally, on emerging issues in corruption in public procurement.
Professor Christopher Yukins – Program Coordinator – Christopher Yukins is the Lynn David Research Professor in Government Procurement Law at George Washington University Law School. He lectures and publishes, both in the United States and around the world, on emerging issues in public procurement law. With Michael Bowsher, he has run a series of programs on international procurement hosted by GW Law and King’s College, London.
Research Resources
Our panelists will be discussing the antitrust/competition enforcement strategies in the United Kingdom, the European Union and the United States.
United Kingdom: In May 2021 the UK Cabinet Office published a Procurement Policy Note – Applying Exclusions in Public Procurement, Managing Conflicts of Interest and Whistleblowing, Information Note PPN 04/21 (May 2021), with an accompanying guide on applying exclusions, which referenced the grounds for exclusion in Regulation 57 of the UK Public Contracts Regulations 2015, and therefore stated that vendors may be excluded where a covered agency “has sufficiently plausible indications that the bidder has entered into agreements with other economic operators aimed at distorting competition,” such as “agreements for price fixing, collusive tendering or market sharing including matters covered by the Competition Act 1998.” The guide also explains the compliance (“self-cleaning”) measures the bidder will be expected to undertake to avoid further exclusion — including paying compensation for any damage caused. (Separately, the Ministry of Justice has published guidance on corporate compliance measures called for under the UK Bribery Act.) The accompanying Frequently Asked Questions (FAQs) from the Cabinet Office explained that a “decision by a regulatory body such as the Competitions and Markets Authority (CMA) finding a company to have restricted, distorted or prevented competition may amount to a ‘sufficiently plausible indication'” to warrant exclusion. While the UK government’s pending “green paper” on the United Kingdom’s post-Brexit procurement law raised the possibility of a central UK debarment authority, with regard to discretionary grounds of exclusion, such as distortions of competition, under the “green paper” it would “remain for individual contracting authorities to determine whether this results in exclusion based on the circumstances of each individual procurement.”
United Kingdom: As part of the UK Competition & Markets Authority (CMA)’s work to reduce the risks of bid rigging in public procurement, the CMA has published the following resources:
- New e-learning training module
- CMA bid rigging advice for public sector procurers
- CMA training for public procurement teams
These resources are part of a wider CMA education program to encourage compliance, the ‘Cheating or Competing’ campaign. The CMA also responded to the UK government’s “green paper” proposals for reform of UK procurement laws, with recommendations on how competition can be preserved to ensure a sound procurement system.
European Union: The UK Procurement Regulations in turn drew upon the grounds for exclusion for anti-competitive agreements in the EU Procurement Directives, such as Article 57 of Directive 2014/24/EU. Like the UK laws referenced above, Article 57 of the EU directive says that vendors may be excluded “where the contracting authority has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition.” In guidance on fighting collusion in public procurement issued in March 2021, the European Commission drew the link between exclusion under the directives and “Article 101 of the Treaty on the Functioning of the European Union (TFEU), which explicitly prohibits agreements or concerted practices that have as their object or effect the prevention, restriction or distortion of competition within the internal market and that may affect trade between Member States.” The guidance noted that, faced with possible exclusion, a bidder “may prove its reliability by submitting to the contracting authority . . . evidence . . . that it has taken sufficient compliance measures to remedy the negative effects of its misconduct (or ‘self-cleaning’ measures).” The March 2021 guidance further noted that international trade agreements, by opening markets, could enhance competition in public procurement. The European Union is also considering the proposed International Procurement Instrument, which could allow member states to apply price preferences against vendors from nations which will not open their markets fairly to access, and the proposed regulation on foreign subsidies (see prior webinar), which could sanction foreign vendors competing for major procurements in the European Union if they received inappropriate government subsidies.
The U.S. Justice Department’s Procurement Collusion Strike Force (PCSF) public website includes links to public-facing outreach and educational resources, including a detailed summary of the PCSF’s first year and articles written by Strike Force members:
- Open for Business: Cartel Enforcement and the Procurement Collusion Strike Force’s Response to the COVID-19 Pandemic, Competition Policy International Antitrust Chronicle, Nov. 2020, by Chester Choi and Daniel Glad.
- Does Something Seem Fishy?: Tips for Spotting the Red Flags of Antitrust Crimes and Collusion in Contracting, National Contract Management Association, Contract Management magazine, Dec. 2020, by Kathryn Kushner (firewall).
- An Update from the Procurement Collusion Strike Force: One Year In, ABA Section of Public Contract Law, The Procurement Lawyer, Fall 2020, by James W. Attridge, Christina J. Brown, and Eyitayo “Tee” St. Matthew-Daniel (firewall).
The U.S. Federal Acquisition Regulation (FAR) in Subpart 3.3 calls on contracting officials to refer “evidence of suspected antitrust violations in acquisitions” to the Attorney General and the agency’s debarring official. Per FAR Subpart 9.4, a vendor may be suspended from participating in federal contracting if “suspected, upon adequate evidence” of having engaged in a violation of federal or state antitrust laws related to bidding, and debarred (FAR 9.406-2) if convicted of an antitrust violation. (For a 2019 King’s College, London – GW Law international symposium on debarment, including extensive background resources, see here.)
The Justice Department publishes Guidance on Corporate Compliance Programs in Criminal Antitrust Investigations. Those measures build on the longstanding compliance guidance published by the U.S. Sentencing Commission. Federal contractors are also subject to compliance requirements which largely track the Sentencing Commission’s guidelines, per Federal Acquisition Regulation (FAR) Subpart 3.10.
The program recording is also available on the GW Law Government Procurement Law Program YouTube page.