Guide to help SMEs comply with competition law

The Competition and Consumer Protection Commission (the Commission ), this week published a guide targeted at small and medium enterprises (SMEs ) to help them comply with competition law when tendering as part of a consortium.

The guide delivers on an important commitment in the Action Plan for Jobs, as part of a suite of measures to make it easier for SMEs to access procurement opportunities from Government.

The guide has been developed to assist businesses who want to join together to form a consortium to submit a joint tender for a public contract.

The Office of Government Procurement (OGP ) has been tasked with centralising public sector procurement arrangements which is designed to improve efficiency and value for money in public purchasing. Earlier this year the OGP adopted new measures that aim to make public procurement more accessible to SMEs. Among other things, the OGP’s measures encourage SMEs to consider using consortia where they are not of sufficient scale to tender in their own right. Consortium bidding must be carried out in a way that complies with competition law. For that reason, the Commission is now publishing this guide on competition law to help SMEs to get involved in consortium bidding. The Commission consulted with the OGP to produce this guide for SMEs.

Commenting on the publication of the guide, Minister for Jobs, Enterprise and Innovation, Richard Bruton, TD, said, “In recent years, as part of the Action Plan for Jobs, the Government has put in place a number of measures to support SMEs in accessing more opportunities from public procurement. Public procurement offers a massive market to Irish businesses, and facilitating more Irish businesses in winning opportunities from the State will help create jobs in Ireland. This guide from the Competition and Consumer Protection Commission will provide an important resource to SMEs in accessing public procurement tenders. Consortium bidding offers an opportunity for SMEs to pool their knowledge and expertise and submit joint bids that can offer competitive and innovative solutions to the purchasing body.” There are a number of reasons why firms might decide to create a consortium in order to submit a joint bid for a public contract. For example, it may be the case that the firms individually do not have sufficient turnover to meet the minimum turnover requirements or do not meet all of the necessary experience or technical capacity requirements set by the purchasing body in the tender competition. However, consortium bidding must be carried out in a way that ensures that the firms involved comply with competition law, both in the tendering process itself and in the market generally. Consortium bidding often involves firms that are actual or potential competitors coming together to submit joint bids for public contracts. Consortium members must make sure that their collaboration on a joint bid does not spill over into their activities in the market more generally and become a means for them to engage in anti-competitive behaviour outside the scope of the joint bid.

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