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“It might not be lawful to prepare works that are subject to joint evaluation”; “It will be related to what I told you in January, that (unidentified Dragados employees) told me that they thought that the group borders on the legality of competition”; “I have my doubts about other works of the Safety, Quality or Environment Plan, I think they could not be shared since if they are presented as they are, the promoter’s ability to value differently is being annulled. It would be interesting to have a legal opinion on the matter in order to be able to make a decision on our continuation in the Group (the G7)”.

These are some of the emails and WhatsApp messages exchanged by managers of the construction companies of the so-called G7, made up of Dragados (ACS), FCC, Ferrovial, Acciona, OHL (today OHLA), Sacyr and the now defunct Isolux Corsán, and that the National Commission of Markets and Competition (CNMC) has imposed a fine of 203.6 million euros , the largest in the business history of Spain for practices contrary to free competition.

“There was a reduction in the uncertainty inherent in public procurement processes, cost savings and a competitive advantage for the members of the G7”

These and other messages at least confirm the doubts on the part of the companies about the irregularities they were incurring with their practices that, in the opinion of the CNMC, altered thousands of public tenders for construction for 25 years, between 1992 and 2017. and civil works of infrastructures.

The messages were made in April 2017 as a result of Dragados, Ferrovial and Sacyr deciding to leave the G7. They were followed by FCC and OHL in subsequent weeks, certifying the dissolution of this group on May 11 of that year.

Since 1992, construction companies have met weekly to analyze construction bids that had been published on different platforms. In these meetings, the companies communicated to each other the decision to share – between all of them or in a subgroup – part or all of the works that made up the technical offers that they presented in the construction and building contracting procedures tendered by various Administrations.

Public in Spain, always for an amount less than one million euros and never above 100 million euros. In addition, the companies exchanged other commercially sensitive information at these meetings, such as their intention or not to attend bids or the intention to form UTEs .

behind the bidders
All of this was done, in the opinion of the CNMC, behind the backs of the bidding bodies . In this way, “there was a reduction in the uncertainty inherent in public procurement processes, cost savings and a competitive advantage for the members of the G7 compared to the rest of the competitors,” the resolution states.

For the CNMC, ” the conduct constitutes a very serious infringement of articles 1 of Law 15/2007, of July 3, on the Defense of Competition and 101 of the Treaty on the Functioning of the European Union”. The body chaired by Cani Fernández has not described this practice as a cartel because it is not about fixing prices or sharing the market.

The CNMC has imposed an economic fine on six of the seven G7 companies (the bankrupt Isolux Corsán and the heiress of some of its businesses, Lantania, have been excluded from the file) of 203.6 million euros, exceeding its highest sanction to date. now, from 171 million, to 21 companies in the automotive sector .

Specifically, Dragados (ACS) has been fined 57.1 million, FCC Construction 40.4 million, Ferrovial Construction 38.5 million, Acciona Construction 29.4 million, OHL – now OHLA – 21.5 million, and Sacyr Construction with 16.7 million.

The average joint share of the G7 between 2008 and 2017 in projects of more than 10 million euros was 44.6%
The amount of the sanctions has been calculated on a joint business volume of the companies linked to public tenders of 133,171 million. The average joint share of the G7 between 2008 and 2017 in projects of more than 10 million euros was 44.6%, also being a “very relevant” percentage in projects of less than 10 million.

The CNMC has agreed to send the resolution to the State Public Procurement Advisory Board so that it can determine, if applicable, the duration and scope of the prohibition on contracting these construction companies with the Public Administrations.

The six companies will appeal the CNMC resolution before the National High Court, leaving the execution of the fines suspended. Ferrovial and Acciona have already filed an appeal against the initiation of the file, on July 21, 2020, but it was dismissed. The companies also presented allegations within the framework of the investigation that have not convinced the CNMC.

Throughout the years of conduct there were hundreds of public tenders in which the G7 companies presented the same project
Among them, they emphasize that the shared technical works would lack the capacity to standardize their technical offers because the score attributed to them would represent a reduced part of that recognized by the Administration in each case for the technical offer.

The CNMC argues that “in order for there to be competitive tension between the companies in each of the elements of an offer, it is necessary for them to be truly independent” . “Only in this way is the incentive for improvement and innovation among competitors, inherent in any public contracting process, encouraged,” he adds.

The companies also indicate that they shared the bidding project around 5% of the times they applied for a bid . The CNMC considers, in any case, that “sharing the bidding project is in itself an element capable of affecting competition” and warns that “a high number of cases would make the conduct more serious, but the mere fact of sharing a part of the offers alters the competitive process, especially when what is shared is the whole of the project that is presented for bidding”. “; an undisputed fact that by itself supposes a very serious alteration of the competitive process”, highlighted the Competition agency.

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