Agreement between bidders: violation of 135-ФЗ
The state controls the behavior of market participants in order to prevent collusion in bidding to raise or lower, as well as to keep prices of products purchased by the state. Such conspiracies are called cartels.
Cartel formations are not uncommon both in our country and abroad. The law stipulates that even verbal agreements regarding a particular behavior are cartels. Also, the law determines which behavior does not apply to cartels.
The antimonopoly authority forms the evidence base for cartel agreements, and then it also issues an order to carry out actions aimed at ending the collusion (cartel).
Plot of affairs
Two companies participated in the purchase of medical instruments, being in different cities, but having one tender department. Between the companies an agreement was signed on the management of activities, and the owners of companies are in close relationship (the spouse of the owner of one business is the brother of the owner of another business).
The Antimonopoly Service saw an oral agreement between companies, and, after analyzing the behavior of companies with participation in thirty different trades, recognized the behavior of the cartel, and issued an order to terminate the oral agreement aimed at keeping prices, as well as develop pricing policies and prepare documents for each company separately .
One of the companies challenged the prescription of the antimonopoly authority.
The court recognized the decision and the prescription of the antimonopoly authority as invalid.
Judicial act: Resolution of the Fourteenth Arbitration Court of Appeal of June 20, 2018, in case A52-3855 / 2017
Court position
1. The court studied the relationship of the two companies in their business: their pricing processes, the preparation of documents for bidding, provided that the companies have one (single) tender department and stated that companies belong to the same group of persons.
2. Also, confirmation of the presence of a group of persons, and not of a cartel agreement, was the fact that one company controls another on the basis of the concluded agreement, and for a long time in this way participates in tenders.
3. The court noted the absence of evidence of joint behavior of companies aimed at obtaining any benefits and advantages, arguing that in the absence of other bidders, the price reduction could not occur at all.
Comments
1. Proving the existence of a cartel collusion is the obligation of the anti-monopoly authority, while proving that the actions are planned in advance, are aimed at controlling prices and infringing the rights of other bidders.
2. Unlike a cartel, a group of companies has the right to participate in bidding by several companies: this behavior is viewed as a business style.
3. A single relationship to prove the existence of a cartel (violation of 135-ФЗ), as well as a group of companies (not a violation of 135-ФЗ) is not enough, there must be a set of supporting factors.
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