The National Commission of Markets and Competition (CNMC) has sanctioned
12 companies
with a total of
61.3 million
euros, among which are subsidiaries of
Acciona, ACS, OHL, Ferrovial, FCC, Elecnor and Sacyr,
for an infraction constituting a cartel consisting of the alteration of the bids for road maintenance and operation services called by the Ministry of Development from 2014 to 2018.
Competition has stressed that it is a very serious infringement prohibited by article 1 of the Law on Defense of Competition and 101 of the Treaty on the Functioning of the European Union and has also sanctioned these companies with the prohibition of contracting with administrations public.
The companies sanctioned for being part of this cartel are
Acciona Mantenimiento
and jointly and severally its parent company
Acciona
;
Aceinsa
;
Alvac
;
API
and jointly and severally its parent company
ACS
;
Audeca
and jointly and severally its parent
Elecnor
;
Copasa
;
Elsamex
;
Elsan
and jointly and severally its parent
OHL
;
Ferroser
and jointly and severally its parent company
Ferrovial
;
Innovia
and jointly and severally its parent company
Copcisa
;
Matinsa
and her parent in solidarity
FCC
, and
Sacyr Conservación
and jointly and severally its parent company
Sacyr
.
Competition underlines that the "special complexity and harmfulness of the cartel" for the general interest have been considered as an aggravating factor when establishing the amount of the fines.
The heaviest penalty corresponds to
API
(ACS), with 11.78 million euros. The FCC subsidiary,
Matinsa
, has been fined 8.5 million, while
Ferroser
(Ferrovial) has been fined 5.7 million euros. The fine for the
Sacyr
subsidiary
reaches 5.17 million, while
Elsan
(OHL) has been sanctioned with 3 million euros;
Acciona Mantenimiento
with 2.33 million, and
Audeca
(Elecnor), with 2.6 million.
For its part, the fine for
Alvac
amounts to 5.8 million, that of
Copasa
reaches 5.6 million, that of
Elsamex
exceeds 4 million and that of
Innovia
amounts to just over 3.3 million euros.
In the case of Aceinsa, initially sanctioned with 3.2 million, the company has availed itself of the CNMC Clemency Program, so the aggravating circumstance is not applied and it will benefit from a 50% discount on the sanction imposed (in total you will have to pay 1.6 million), being exempt in addition to the application of the prohibition of contracting with the Administration.
Regarding the prohibition of contracting with public administrations, the CNMC has decided to send the notification of this resolution to the State Contracting Board in order to initiate the procedure to determine the duration and scope of said prohibition to fined companies .
OPERATION OF THE CARTEL
According to the CNMC, the sanctioned companies systematically participated in all agreed tenders, restricting the number of offers with withdrawals exceeding a threshold predetermined by the cartel that they could submit.
The CNMC has been able to prove that the cartel operated between February 2014 and December 2018, although it has detected conversations since 2009. The participating companies were awarded 71 tenders out of a total of 101 issued by the Ministry of Public Works related to the provision of public services services. conservation and exploitation of the State Roads Network, according to the Europa Press agency.
The total amount of the awards to cartel companies
exceeded 530 million euros,
which represents 63% of the total amount awarded by the Ministry for the conservation services of the State Highway Network.
The operation of the cartel was developed through
meetings "to drink coffee"
where the companies that were part of it periodically established the criteria for coordinating the economic offers to be presented in the bids of the Ministry of Development for the road maintenance services of the State.
The cartel grouped the different tenders into groups for which common criteria for the presentation of economic offers were agreed. The sanctioned companies assigned a "bag" of points for each group of tenders that were being consumed by the companies based on the level of discounts on the contracting budget. The higher the losses they presented in their respective economic offers, the more 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 presented high discounts in each group of tenders was limited, since the number of points in the bag was never enough to try to get all the contracts in each group. This system It encouraged each cartel company to concentrate its awarding possibilities in a limited number of tenders, presenting in the remaining tenders with little or no awarding possibilities, thus becoming hedging offers, "he explains.
According to Competencia, the companies
also agreed on the discount threshold
for these coverage offers and undertook to present offers in all the tenders of each group. "In this way, it was possible to alter the abnormality threshold (calculated on the basis of the offers presented in each tender) and they could get offers from companies outside the cartel that were truly competitive to be excluded from the contracting process," he argues.
The CNMC points out that this "sophisticated system" was adapted to the successive changes in the contracting specifications introduced by the Administration.
"The mechanics used by the cartel were particularly complex, facilitating the monitoring of its compliance while making its detection extremely difficult," says the agency.
INVESTIGATION BASED ON ANONYMOUS INFORMATION
The CNMC initiated the investigation into this cartel in October 2017 based on anonymous information.
After the inspections carried out at various headquarters of the companies that were part of the cartel in 2018,
in July 2019 a sanctioning proceeding was opened against 13 companies.
In December 2020, Ferrovial was included in the same sanctioning file, although it was not finally fined as an author, but as jointly and severally liable for the conduct of its subsidiary (Ferroser).
The CNMC has called on the Competition Directorate to monitor full compliance with its resolution and analyze the possible liability of the managers involved in these infractions.
The body chaired by Cani Fernández also recalls that a contentious-administrative appeal may be filed against this resolution at the National High Court, within two months from the day following its notification.
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