Joint Tendering in the European Economic Area

The EU regulation of public procurement strives to create a set of rules that would enable the contracting authority to choose the best bid. In order to do so, it also tries to widen the circle of potential bidders by enabling their horizontal (consortia) as well as vertical (subcontracting) cooperation. Such cooperation may enable the participation of undertakings that would not be otherwise in position to bid on their own, thus increasing the number of bidders and promoting competition among them. At the same time, such arrangements may be contrary to competition law which prohibits coordination of competitors. Joint tendering is ubiquitous within the European Economic Area, and yet the case-law on its compliance with competition law is strikingly divergent. This article provides an overview of the current state of play and some suggestions for future practice.