The National Commission for Markets and Competition (CNMC) has sanctioned a total of 61.3 million euros to 12 companies, among which are subsidiaries of ACCIONA, ACS, OHL, Ferrovial, FCC, Elecnor and Sacyr, by A constitutive infringement of cartel consisting of the alteration of the bidding of conservation services and exploitation of roads convened by the Ministry of Development since 2014 to 2018.
Competition has underlined that it is a very serious infringement forbidden by Article 1 of the Competition Defense Law and the 101th Treaty on the Functioning of the European Union and has also sanctioned these companies with the prohibition to contract with administrations Public.
The companies sanctioned by being part of this cartel are maintaining maintenance and solidarily their matrix ACCIONA; Aceinsa; Alvac; API and Solidarity Your ACS matrix; Audeca and Solidarity his Elecnor matrix; Copasa; Elsamex; ELsan and Solidarity His Matrix OHL; Ferroser and Solidarity Her Ferrovial Matrix; Innovia and Solidarity Your Copcisa Matrix; Matinsa and Solidarity his FCC matrix, and Sacyr conservation and solidarily his Sacyr matrix.
Competition emphasizes that the "special complexity and harmfulness of the cartel" for the general interest have been considered as aggravated when establishing the amount of fines.
The most bulky sanction corresponds to API (ACS), with 11.78 million euros. The FCC subsidiary, Matinsa, has been fined with 8.5 million, while Ferroser (Ferrovial) has been sanctioned with 5.7 million euros. The fine to the subsidiary of Sacyr reaches 5.17 million, while Elsan (OHL) has been sanctioned with 3 million euros; ACCIONA Maintenance with 2.33 million, and Audeca (Elecnor), with 2.6 million.
For its part, the fine to Alvac amounts to 5.8 million, that of Copasa reaches 5.6 million, that of ELSAMEX exceeds 4 million and that of Innovia adds something more than 3.3 million euros.
In the case of Aceinsa, initially sanctioned with 3.2 million, the company has welcomed the CNMC Clemency Program, so the aggravating circumstance is not applied and will benefit from a discount of 50% of the sanction imposed (in total you will have to pay 1.6 million), being exempt from the application of the prohibition to contract with the administration.
Regarding the prohibition of hiring with public administrations, the CNMC has decided to refer to the State Contract Board of the notification of this resolution to begin the procedure to determine the duration and scope of said ban on fined companies .
According to the CNMC, the sanctioned companies participated systematically in all bidders agreed, restricting the number of bids with low above a predetermined threshold by the cartel they could present.
The total amount of the awards for companies from the Cartel exceeded 530 million euros, which represents 63% of the total amount awarded by the Ministry for the Conservation Services of the State Road Network.
The operation of the cartel was developed through "to drink coffee" meetings where the companies that were part of it periodically established the criteria for coordination of economic offers to be presented in the ministry's bids for highway conservation services for the State.
The cartel grouped the different tenders in groups for which they remembered common criteria of presentation of economic offers. The sanctioned companies assigned a "stock market" for each group of tenders that were consuming by companies based on the level of discounts on the contracting budget. The greater the losses presented in their respective economic offers plus points were spent, applying a formula specifically designed by the cartel for each group of contracts.
"In this way the number of contracts in which companies had high discounts on each group of bids were limited, since the number of points of the bag was never enough to try to achieve all the contracts of each group. This system He encouraged each Cartel Company to concentrate its awarding possibilities in a limited number of tenders, presenting in the rest, offers with scarce or null award possibilities, thus becoming coverage offers, "he explains.
According to competition, companies also agreed on the discount threshold for those coverage offers and committed to submitting offers on all bids of each group. "In this way it was possible to alter the threshold of abnormality (calculated on the basis of the bids presented in each tender) and could get that offers of companies outside the actual competitive poster were excluded from the contracting process," he argues.
The CNMC points out that this "sophisticated system" was adapting to the successive changes in the contracting sheets introduced by the Administration. "The mechanics used by the cart was particularly complex, facilitating the monitoring of its fulfillment while making its detection greatly difficult", precise the organism.
The CNMC began research on this cartel in October 2017 from anonymous information. After the inspections carried out in several venues of the companies that were part of the cartel in 2018, in July 2019, it initiated a sanctioning file against 13 companies.
In December 2020, Ferrovial was included in the same sanctioning file, although finally it has not been fined as an author, but as a solidarity responsible for the conduct of its subsidiary (Ferroseser).
The CNMC has placed the direction of competence to monitor full compliance with its resolution and analyze the possible responsibility of the managers involved in these infractions.
The organism that Character Cani Fernández also recalls that against this resolution, a contentious-administrative resource can be filed at the national audience, within two months of the day after its notification.Updated Date: 20 August 2021, 04:32