Evaluating Legal Frameworks for Joint Bidding in Public Procurement: Balancing Collaboration and Competition

Abstract

Public procurement and competition law aim to ensure fairness and efficiency, but their strict application may unintentionally hinder supplier participation and limit contracting authorities’ success. Agreements among suppliers must avoid restricting competition, yet overly rigid competition rules may prevent contracting authorities from receiving a single tender for works, services or goods. While there is a potential risk of consortia abuse, detailed case-by-case analyses are essential to address these concerns. Some countries are already developing practices for evaluating such agreements. This paper examines the legal framework and emerging practices surrounding joint bidding and explores options for balancing public procurement and competition law. Particular focus is given to the conditions under which undertakings can submit joint offers without breaching competition rules. Current regulations provide some direction but lack clarity on when bidding consortia are permissible. Given the strict sanctions for competition law violations, many undertakings hesitate to form joint ventures, fearing that consortia may be deemed a “by object” breach, placing the burden of proof on the participants. This uncertainty underscores the need for comprehensive legal and economic evaluations in joint bidding cases. The lack of legal certainty presents significant challenges, making it critical to advance research and publication on this topic to provide clearer guidance for stakeholders involved in public procurement.