CMS Expert Guide: Right Bidding vs Bid Rigging in Slovakia

The bidding process is governed by Act No. 343/2015 Coll. on Public Procurement, as amended (the “APP”) setting up the rules and further details of the bidding processes, concessions and bid competitions in public procurement if falling under the scope of the APP.

Bid rigging is not expressly defined under Slovak law, but it is deemed to be one form of a hard-core cartel agreement as prohibited under the Act No. 187/2021 Coll. on Competition Protection as amended (the “ACP”), in particular “any coordination of undertakings in public procurement, in a public tender or another similar tender, in connection with public procurement, public tender or another similar tender”. 

Bid rigging is prohibited under the ACP and therefore, the Antimonopoly Office of the Slovak Republic (the “AMO”) imposes the sanctions in the form of a fine and prohibition of participation in the bidding process for one to three years.

The respective contract can be considered null and void for a conflict with law, but such decision can only be issued by the court (the AMO does not have that competence).

Bidders can be excluded from the process only once the prohibition decision by the AMO is final and effective, i.e.:

• it cannot be further contested in court;
• the court claim against it has not been filed with the court;
• the court claim was dismissed or the proceeding was abated and the court decision has not been further appealed;
• the appeal against the first-instance court decision is dismissed or the proceeding abated.

Once the decision is final and effective, the AMO delivers it to the Office for Public Procurement.

Bid rigging can be also subject to criminal proceedings as a criminal offence of, e.g. manipulation of public procurement, obstruction to enforcement of official decision (participation in the tender process despite a final court decision prohibiting the participation in the tender), abuse of competition (infringement of competition law).

As written, the AMO as NCA can impose the following tender bans:

• for one year in the case of a cartel infringement in the form of bid rigging if the fine was reduced due to settlement;
• for three years in the case of a cartel infringement in the form of the bid rigging if the fine was not reduced.

In the case of the full or partial leniency, the AMO does not impose a tender ban.

The AMO may refrain from a tender ban in exceptional cases, in particular if a tender ban could lead to the significant deterioration in competition.

The ban starts only once the decision of the AMO is final and effective as explained in answer 2.

It is not possible to be exempted from the tender ban before the expiry of the full duration.

There are a few guidelines only in Slovak:

• Cartel agreements in public procurement from 2010, which provides some general information on cartel agreements in public procurement, the indications of collusion, examples of cases, use of certificates of independent bid determination and some guidance on how to prepare a tender to minimise collusion.
• Indications of anticompetitive behaviour by entrepreneurs in a public procurement, which is generally an extract from the first document.
• Guidance from the OECD for fighting bid rigging in public procurement from 2009.

All of these documents are outdated. There are no special guidelines on lawful joint bidding or consortia.

From 2020 to 2022, six proceedings were opened, three dawn raids took place, and four fines were issued related to bid rigging.

These numbers might be incomplete as there are no specific statistics regarding bid rigging and we have summarised these data based on publicly available information.

Almost 90%.

In December 2021, the AMO imposed a fine on three undertakings for a total of EUR 8,635,625, which is subject to review by the Office’s second-instance body.

Yes.

The application for leniency programmes, which are open exclusively to horizontal restrictions, could result in immunity or a reduction in fines.

The first entrepreneur that applies and brings evidence about the existence of a cartel might not be fined. If the entrepreneur brings significant evidence, i.e. that might not be enough to prove the existence of the cartel, but with other existing information can be proved, can receive a reduction of 50%.

Yes, including special criminal liability for legal entities.

The tenderer can be prohibited from participating in public procurements for up to ten years, its property can be confiscated and an individual can be imprisoned for several years, depending on the particular criminal offence and other circumstances.

Yes, bid rigging is one of the priorities of the AMO in Slovakia.

Construction, machinery, health care, energy.

N/A