New Book: G Racca & C Yukins (eds) "Integrity and Efficiency in Sustainable Public Contracts" (Brussels, Bruylant, 2014).


The new book on "Integrity and Efficiency in Sustainable Public Contracts. Balancing Corruption Concerns in Public Procurement Internationally" edited by Profs. Racca and Yukins is now available.

As the editors indicate

Ensuring efficiency and integrity throughout the public procurement cycle is essential to a sound allocation of taxpayers’ money. Yet public contracts are plagued by corruption, collusion, favoritism and conflicts of interest. This book addresses these problems from sophisticated, academic, institutional and practical perspectives.
The book’s ambition is to shape the public debate in the procurement community by highlighting how corruption implies violations of fundamental rights and undermines the fiduciary relationship between citizens and public institutions. The analysis underlines how corruption may stem from - and yet be resolved - through the exercise of discretion in the public procurement system. Focusing on the effects of public corruption and private collusion on procurement integrity, the book marks the features of misconduct and suggests needed counter-measures. The work also emphasizes that the pursuit of efficiency and integrity in public contracts must be rooted in professional skills, and in ethical regulations and training for public officers.
The research reflected in these pieces comes from sources around the world, and offers an excellent foundation for further development of these topics. Expanding on prior research, this volume builds on a more active transnational academic cooperation and exchanges of ideas on integrity in public contracts for the benefit of citizens.
This book is intended as both a textbook and an edited collection and it is available as an e-book too. The authors of the chapters are all specialists in their respective fields, and their different geographical and professional perspectives represent a valuable contribution to the scientific literature.
I have contributed a chapter on “Prevention and Deterrence of Bid Rigging: A Look from the New EU Directive on Public Procurement”, which SSRN version is available here.

Isn't silence golden? A comment on Menager's "Communication in Procurement" (2013)

In a recent thought-provoking paper, Lucie Ménager questions one of the basic assumptions in competition law enforcement against bidding rings in public procurement: that pre-tender communication amongst bidders is prejudicial. In her working paper "Communication in procurement: silence is not golden", she claims that
Contrary to the conventional wisdom, the buyer's expected revenue and the surplus need not decrease with collusion, and the ex-ante surplus increases with the amount of information revealed in equilibrium. This is because when communication is cheap, bidders cannot directly collude on higher prices. Rather, communication leads to a competition between fewer, but more aggressive bidders, which entails more allocative efficiency and a decrease in the total wasteful entry cost (emphasis added).
The proposition indeed seems to challenge conventional wisdom about cartelization in public procurement markets and, consequently, the assumptions of the model deserve some close consideration. It is also relevant to stress that, throughout the paper, the author herself waters down this claim and its implications--which may have warranted a revision of the abstract (?).
 
In my view, the example used as the rationale for the paper (the well known Boeing-Airbus struggle over a $40bn USAF aircraft contract between 2008-11) might have primed the author in some of her considerations, which may downplay the relevance of the fact that reputation-based messages or threats are usually of scant significance in public procurement markets, unless very specific circumstances concur--which, mainly, boil down to the (pre-)existence of a very closed oligopoly, the presence of (very high) bidding costs, and a situation where all members of the colluding oligopoly communicate public messages before the tender [conditions that will be introduced slowly and progressively into the model, but which are not clearly spelled out from the beginning].
 
The paper eventually acknowledges these restrictions in its technical construction (where the preexistence of a cartel is clearly indicated as a condition for the 'cheap-talk' game; see pages 10 and 12), but it may not be equally clear in the narrative--where there is no clear indication as to the very rare occurrence of all of the conditions for the game equilibria to hold. 
 
Moreover, the author itself stresses that, even within the model,
Keeping participation secret from bidders could then be a way to prevent collusion. This is consistent with the competition authorities' recommendation according to which sellers should not be allowed to communicate about their intention to participate. Though, this solution is practically hard to implement in the case of public procurements, for which bid preparation may last several years (p. 17, emphasis added).
This also bears stressing, as only a very limited number of procurement projects require the preparation of bids over a number of years.
  
Also, it needs to be underlined that the 'cheap talk' strategy is only relevant if there are significant (discrete) participation costs that the bidder can (completely) avoid if (as a result of the signalling derived from the 'cheap talk phase') it decides to stay out of the procurement. However, and very relevant here, significant participation costs are incurred upfront where bidders are invited/accepted to complex procurement procedures (such as competitive dialogues in the EU) and which are necessary to even reach the phase where bidders have a relatively clear idea of the 'private' valuation or production costs--and that, in my view, would require incorporating the role of 'sunk costs' into the decision-making processes analysed in the game.
 
Finally, it is also worth emphasising that, despite the design of the model as a repeated game (or, at least, its requiring some prior experience by the bidders in tendering against each other), dynamic (welfare) effects are not taken into account. In that regard, it would still be required to assess whether the potential allocative efficiency derived from a decrease in total wasteful participation costs is not outweighed by negative dynamic effects, such as market exit, reduction of innovation or, eventually, the evolution of the 'soft cartel' necessary for the model to work into a full-fledged hard cartel (where cheap talk is no longer cheap, but an all encompassing bid rigging strategy--something that the author will reckon as a sort of an after-thought in her concluding remarks).
 
In my view, the very extreme (and sometimes artificial and disconnected from the way particularly complex procurement processes work) assumptions of the model may reduce the validity (or, rectius, the practical relevance) of some of the findings of the paper--or, at least, of the normative propositions that could be derived therefrom. To her merit, it should be stressed that the author herself acknowledges that by indicating that
We do not think [these] results advocate authorizing communication between sellers in public procurements, though. Clearly, if communication is not cheap, sellers can either collude on higher prices, which indeed increases public spending, or on bid rotation schemes which are generally inefficient. Rather, we think these results emphasize how di fferent can be the outcome implications of cheap-talk and binding communication(emphasis added).
After reading the paper, and particularly because cheap talk is twinned to high participation costs (which eventually force bidders to put their money where their mouth is), it is hard to actually appreciate the differences between such 'cheap talk' and other forms of 'binding' communication within cartel rings. It follows that it is also difficult to extract any normative recommendation from the paper (and this should be stressed, as a superficial reading of the title, abstract and introduction may provide the contrary impression). Its scope is much narrower than it could seem at first glance and no changes on the existing rules and enforcement priorities agains bid rigging should be derived from the findings of the paper. Much ado about nothing? Nonetheless, in purely intellectual terms, it is interesting to read, particularly for game theory scholars.

Difficult balance between #transparency and #competition in #publicprocurement

This paper stresses the negative impact that the excessive levels of transparency imposed by public procurement rules can have on competition for public contracts and, more generally, on the likelihood of cartelisation of the markets where public procurement takes place. The paper critically assesses some recent Judgments of the Court of Justice of the European Union and the General Court from this perspective and shows how the top EU Courts are still oblivious to the fact that excessive transparency may diminish the effectiveness of procurement by reducing competition. It also indicates that the case law itself has unused balancing tools that may help reduce the negative impact of excessive transparency, particularly if coupled with a reduction of the financial incentives offered to litigants that have no other claim than a 'mere' lack of compliance with full transparency. The paper concludes that a reform in the enforcement and oversight mechanisms oriented towards the setting up of a semi-opaque review system would overcome some of the deficiencies identified in the current case law from a law and economics perspective.
Sánchez Graells, A 'The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives' (November 2013). University of Leicester School of Law Research Paper No. 13-11. Available at SSRN: http://ssrn.com/abstract=2353005.

Public Procurement and Competition: Some Challenges Arising from Recent Developments in EU Public Procurement Law


I have just published on SSRN a new paper on "Public Procurement and Competition: Some Challenges Arising from Recent Developments in EU Public Procurement Law": http://ssrn.com/abstract=2206502.


The paper updates some of my previous commentary to the competition law implications of the ongoing reforms of EU public procurement rules, particularly in view of the 2 October 2012 revised Compromise Text published by the EU Council: http://register.consilium.europa.eu/pdf/en/12/st14/st14418.en12.pdf 

This is the abstract:
The relationship between public procurement and competition has recently been receiving an increasing amount of attention, both in academic and policy-making circles. It is becoming common ground that public procurement holds a complex and bidirectional relationship with market competition and that, consequently, a tighter link between public procurement and competition law enforcement needs to be established.
This paper explores the recent OECD push for more competition in public procurement and its role as an influential factor in the ongoing reform of EU public procurement rules. Afterwards, it critically assesses three of the main challenges to keeping public procurement precompetitive: (i) the difficult balance in terms of procurement transparency created by the clash between competition and corruption concerns; (ii) the magnification of the undesired (potential) anticompetitive effects of public procurement that centralised procurement may generate, as well as its increasing use as an improper tool of market regulation; and (iii) the possible competitive distortions and the potential advantages resulting from the generalization of eProcurement. The conclusions extract some common patterns derived from the previous analysis and suggest some policy recommendations mainly oriented at boosting oversight and professionalization of procurement.
The paper is due to appear in C Bovis (ed) Research Handbook on European Public Procurement (Elgar Publishing, 2013).

New Year's Resolution: Fight Bid Rigging Effectively (OECD Recomm of 17 July 2012)

I know it might be a bit too soon to start thinking about New Year's Resolutions. However, around these dates, well organised public procurement and competition authorities should be planning their activities and enforcement priorities for 2013. Therefore, it might be a good time to suggest that they focus and deploy a sufficient amount of resources in giving effect to the OECD's 17 July 2012 Recommendation on Fighting Bid Rigging in Public Procurement.

The OECD's Recommendation captures most of the key elements that can make a public procurement system either pro-competitive or potentially distortive of market competition, and particularly sets out that
Members assess the various features of their public procurement laws and practices and their impact on the likelihood of collusion between bidders. Members should strive for public procurement tenders at all levels of government that are designed to promote more effective competition and to reduce the risk of bid rigging while ensuring overall value for money.
To this effect, officials responsible for public procurement at all levels of government should:
1.   Understand, in co-operation with sector regulators, the general features of the market in question, the range of products and/or services available in the market that would suit the requirements of the purchaser, and the potential suppliers of these products and/or services.
2.   Promote competition by maximising participation of potential bidders by:
i)   establishing participation requirements that are transparent, non-discriminatory, and that do not unreasonably limit competition;
ii)   designing, to the extent possible, tender specifications and terms of reference focusing on functional performance, namely on what is to be achieved, rather than how it is to be done, in order to attract to the tender the highest number of bidders, including suppliers of substitute products;
iii)   allowing firms from other countries or from other regions within the country in question to participate, where appropriate; and
iv)   where possible, allowing smaller firms to participate even if they cannot bid for the entire contract.
3.   Design the tender process so as to reduce the opportunities for communication among bidders, either before or during the tender process. For example, sealed-bid tender procedures should be favoured, and the use of clarification meetings or on-site visits attended personally by bidders should be limited where possible, in favour of remote procedures where the identity of the participants can be kept confidential, such as email communications and other web-based technologies.
4.   Adopt selection criteria designed i) to improve the intensity and effectiveness of competition in the tender process, and ii) to ensure that there is always a sufficient number of potential credible bidders with a continuing interest in bidding on future projects. Qualitative selection and award criteria should be chosen in such a way that credible bidders, including small and medium-sized enterprises, are not deterred unnecessarily from participating in public tenders.
5.   Strengthen efforts to fight collusion and enhance competition in public tenders by encouraging procurement agencies to use electronic bidding systems, which may be accessible to a broader group of bidders and less expensive, and to store information about public procurement opportunities in order to allow appropriate analysis of bidding behaviour and of bid data.
6.   Require all bidders to sign a Certificate of Independent Bid Determination or equivalent attestation that the bid submitted is genuine, non-collusive, and made with the intention to accept the contract if awarded.
7.   Include in the invitation to tender a warning regarding the sanctions for bid rigging that exist in the particular jurisdiction, for example fines, prison terms and other penalties under the competition law, suspension from participating in public tenders for a certain period of time, sanctions for signing an untruthful Certificate of Independent Bid Determination, and liability for damages to the procuring agency. Sanctions should ensure sufficient deterrence, taking into account the country’s leniency policy, if applicable.
All these recommendations, which are further developed in the OECD 2009 Guidelines for fighting bid rigging in public procurement are well-designed and their proper implementation may indeed contribute to strengthen competition for public contracts and to prevent and effectively identify and sanction instances of bid rigging. 

For more detailed proposals, the reader may want to consult my normative recommendations, based on the current EU public procurement rules [Sanchez Graells, Public Procurement and the EU Competition Rules (Oxford, Hart Publishing, 2011)].

Cartels in public procurement: A short comment on Heimler's (2012) J Comp L & Econ 8(3): 1-14

Prof. Alberto Heimler has recently published the interesting piece 'Cartels in Public Procurement' (2012) J Comp L & Econ 8(3): 1-14 [available, but maybe for subscribers only, here]. In his paper, Prof. Heimler discusses the specific features of bid-rigging as a particularly stable instance of collusion and presents some proposals to reduce the administrative burden and increase the incentives for procurement officials to track potential instances of bid rigging and to report them to the competition authorities, even on the basis of a mere suspicion (ie without need to provide full proof of the infringement). 

The abstract of his piece shows these general ideas:
Public procurement markets differ from all others because quantities do not adjust with prices but are fixed by the bidding authority. As a result, there is a high incentive for organizing cartels (where the price elasticity of demand is zero below the base price) that are quite stable because there are no lasting benefits for cheaters. In such circumstances, leniency programs are unlikely to help discovering cartels. Since all public procurement cartels operate through some form of bid rotation, public procurement officials have all the information necessary to discover them (although they have to collect evidence on a number of bids), contrary to what happens in normal markets where customers are not aware of the existence of a cartel. However, in order to promote reporting, the structure of incentives has to change. For example, the money saved from a cartel should at least, in part, remain with the administration that helped discover it and the reporting official should reap a career benefit. In any case, competition authorities should create a channel of communication with public purchasers so that the public purchasers would know that informing the competition authority on any suspicion at bid rigging is easy and does not require them to provide full proof.
This 'mainstream' description of his paper is perfectly in line with most economic and legal scholarship in this field and his work is an interesting reminder of the need to increase the liaison between public procurement and competition authorities, as well as to create a set of incentives (or a dedicated position) for public buyers to act as competition watchdogs of sorts or, more generally, as competition advocates [along the same lines, see A Sanchez Graells, Public Procurement and the EU Competition Rules (Oxford, Hart Publishing, 2011) 385-389]. Moreover, Prof. Heimler offers a couple of interesting insights that should be taken into consideration in the design of effective public procurement systems against bid rigging.

On the one hand, Prof. Heimler clearly indicates the diverging financial interests in bidding rings as opposed to 'general' cartels, which make leniency programs (potentially) less effective in this type of market settings:
Contrary to what happens in normal markets, bid-rigging cartels are much more stable. While in normal markets, quantities and prices are found simultaneously, in bidding markets, quantities are set by the organizer of the bid and the bidding is just used to find the lowest price associated with those quantities. Bid riggers know that by reducing prices (with respect of the agreed ones), they do not achieve any increase in the quantities sold. Rather, they just increase their profit at the expense of competitors and, most importantly, only for one bid. Once there is defection for one bid, the cheater knows (because of the transparency rules in public procurement) that he will be discovered and competition will prevail for all future bids. As a result of these characteristics, partly structural and partly rule-based, the incentive to cheat in bid rigging is much less pronounced than in normal markets (where cheating can be kept secret, at least for some time) (p. 7).
On the other hand, the level of transparency that is structurally implicit in public procurement settings makes it much easier for (properly trained) procurement officials to detect instances of bid rigging and to react:
Contrary to normal cartels, where the participating firms agree on prices or on territories so that customers face an information gap with respect to competitive prices, bid rigging in public procurement requires that the participating firms agree on the bid participation strategy (who wins and at what price; who will participate today; and who wins and who participates in future bids). As a result, bid riggers leave a lot of evidence on the strategies pursued that a well-trained public administration official could indeed identify. As a result, while a public procurement cartel is stable on the supply side, it could be discovered by due diligence on the demand side. This is the opposite of what happens with private market cartels (p. 12).
However, Prof. Heimler also includes a couple of final recommendations to make bid rigging more difficult that, in my opinion, would raise more issues than they would solve. Indeed, he proposes that:
There are also some very important procedural and legal steps that should be taken to make bid rigging much more difficult.
The first is to centralize purchases (or make sure that bids are not made artificially too small so that the construction of a large infrastructure project cannot be easily divided up among all the firms in the industry). This way, the information on the different bids can be found within the same organization so that any irregularity across different bids can be more easily identified. Furthermore, a centralized purchasing agency can organize bids of higher value (purchasing for a number of administrations) so that bids would be more infrequent and bid-rigging agreements would be more difficult to maintain.
Also, the rules that favor small firms in their participation in tenders, in which individually they would not be able to participate because of their small size, should be made much more rigorous. In particular, temporary consortia should only be allowed if comprised by firms producing complementary goods or services, while simple horizontal consortia should be prohibited. In fact, temporary consortia between rivals are very often a tool for enforcing a cartel more so than a way to increase competition (p. 13, emphasis added).
In my opinion, the first objective (centralization of information to make detection easier) can be attained simply by improving reporting and analysis mechanisms (along the lines of Articles 83 to 87 in the 2011 proposal for new EU public procurement Directives, now significantly reduced), rather than by conducting centralized procurement (which can lead to market foreclosure and other knock-on effects that are detrimental in economic terms).

Regarding the second proposal, I do not see how restricting SME's participation through consortia (ie limiting participation to larger companies) would reduce rather than increase the likelihood of collusion--since it would be equivalent to creating an oligopolistic (sub)market for larger companies, to which those large(r) contracts would be reserved. 

Hence, I would strongly recommend not taking any of those two actions, at least until some further (empirical) research is conducted in this field.

Public buyers will self-protect against bid rigging

Another of the interesting developments included in the compromise text that reflects the current status of negotiations for the modernisation of  EU public procurement rules (http://tinyurl.com/modernisationcompromise) is the inclusion of a new Article 54(3) that clarifies that tenderers affected by any grounds for exclusion can be disqualified by contracting authorities at any time:
Contracting authorities may at any moment during the procedure exclude an economic operator where it turns out that the economic operator in question is, in view of acts committed either before or during procedure, in one of the situations referred to in Article 55(1) to (3).
This is a relevant clarification that prevents a rigid interpretation that would have limited the possibility to exclude tenderers at the beginning of the procurement process (ie only at selection stage).

Notwithstanding the above, and maybe most interestingly, this provision is coupled with a new Article 55(3)(d) in virtue of which a tenderer can be excluded
where the contracting authority can demonstrate that the economic operator has entered into agreements with other economic operators aimed at distorting competition.
This is an important development in terms of reducing the impact of bid rigging on procurement, which stresses the need for contracting authorities to cooperate closely with competition watchdogs (both at regional and national levels, and with the European Commission's Directorate General for Competition) and that opens the door to potential difficulties in terms of due process (eg what is the burden of proof to be discharged by contracting authorities?) and an eventual conflict of enforcement competences (both by administrative bodies and in terms of judicial review, particularly where competition matters are assigned to specialised courts).

Therefore, when the time to transpose Articles 54 and 55 of the new Directive (if adopted in the terms of the compromise text) comes, it will be interesting to revisit the institutional architecture of procurement authorities to ensure the appropriate collaboration channels with antitrust authorities (on this, see A Sanchez Graells, Public Procurement and the EU Competition Rules [2011] Hart Publishing 381-389).