The six largest construction companies —Acciona, Dragados (ACS), FCC, Ferrovial, OHLA and Sacyr— have not been slow to charge in droves against the National Commission of Markets and Competition (CNMC) for the imposed fine of 203.6 million euros for distributing over 25 years, between 1992 and 2017, thousands of public tenders for the construction and civil works of infrastructures, such as hospitals, roads or airports. Through its Seopan association, which only brings together large construction companies and concessionaires, it has accused the regulator of “lack of rigor because it dispenses with the necessary elements of evidence, based on mere subjective assessments, opinions or suspicions, which violate the right of companies to the presumption of innocence, makes an error by wrongly assessing the conducts investigated as collusive practices and violates the principle of proportionality by imposing manifestly disproportionate sanctions”, as stated this Friday in a statement.
The association denounces that the sanctioning file harms “very seriously and unfairly the reputation of the affected companies” (immersed, moreover, in other sanctioning files by the CNMC), and specifies that the resolution is not final and must be the Courts of Justice which, in due course, will rule on the facts imputed in the appeals that the affected companies are going to file before the National High Court.
Likewise, Seopan points out that, as the resolution itself expressly acknowledges, the practices investigated “have not been classified as a cartel because they are not collusion of those typically sanctioned by the Competition authorities”, that is, the CNMC acknowledges that they are not there has been no agreement on price fixing or market sharing, “as has been erroneously interpreted by some media.”
Competition explained in a note the modus operandi of the group (called G7 because in principle it was made up of seven companies): it consisted of holding weekly meetings to analyze the public works tenders that had been published on different State contracting platforms. In these appointments, the companies agreed on the tenders in which they were going to share —among all or in a subgroup— part or all of the works that would make up the technical offers of the tenders. The companies also exchanged sensitive commercial information (different from that necessary to share the works), such as their intention to participate or not in tenders, or to form UTEs (Temporary Union of Companies) and the members that would integrate them to ensure the awards.
The organization argues that although the press release published by the CNMC leads one to think that there is collusion, the resolution of that same body “denies it and expressly expresses it”. “At no time in the file is it stated that there was a distribution of the bidding market or that there was a determining advantage of the award. What’s more, the companies involved have presented studies that clearly demonstrate that the fact of sharing these technical documents has neither improved nor worsened the chances of being awarded the sanctioned companies”. And he adds that, on the contrary, the enormous competition that exists in the Spanish public works market results in the frequent awarding of contracts to reckless or abnormally low bids.
The superemployer The construction company also denies that there has been any agreement restricting competition whose purpose was to present the same technical offers and alter the tenders as stated in the CNMC resolution, “but a cost reduction practice in the preparation of tenders that is lawful, normal and efficient, as well as to complete the projects by incorporating geotechnical, topographical or other studies that the original project lacks”. “There is no evidence whatsoever that proves that the sharing of these bidding costs altered the quality of the technical offers that each company presented separately or that there was an advantage for the companies by sharing bidding costs. It is a simple opinion of the CNMC, which cannot be shared”, she concludes.
It also qualifies as “uncertain” the statement contained in the resolution that there has been a violation of public procurement legislation, which it attributes to “a biased interpretation” by the CNMC of some articles of the Public Sector Contract Law. . “The practice of cost reduction has legally benefited thousands of tenders, without there being any record of a single case in which the offer has been rejected, objected or in some way considered irregular by any of the Administrations involved” By Finally, Seopan commends the great effort made by the six companies in recent years to combat unethical practices.