On 27 August, the Maritime and Commercial High Court ruled in a consortia case about a joint bid for road markings in a public tender. The tender covered three geographical districts, and the bidders could bid for 1,2 or 3 districts. The bids could include a discount, if the bidders won all districts.
The key question in the case was: Are companies allowed to form a consortia in order to bid for the total contract (all three districts), if each company would have been able to bid for part of the contract (one district) alone?
The Danish Competition Council and The Danish Competition Appeal Tribunal said no – if companies can bid on a part of contract, they are competitors and joint bidding is an infringement by object.
However, the Maritime and Commercial High Court repealed this ruling, arguing that it may be better for competition to get one joint bid that covers the entire contract than two separate bids each covering one part of the contract. Hence, a joint bid for the entire contract cannot be seen as an infringement by object, even though each company can bid for a part of the contract.
Copenhagen Economics submitted expert opinions and provided expert testimony as well as explained the incentives in the tender.
For further information, please contact Henrik Ballebye Okholm