Julkisten hankintojen perusteet ja kilpailuoikeuden rajapinta/EN

Suomeksi

Public procurement and competition law are linked in two ways: the Procurement Act (1397/2016) itself seeks to safeguard genuine competition in public procurement, and, separately, procurement procedures carry their own specific competition-law risk — bid-rigging cartels.

Avainkohdat

• Mistä on kyse: The Procurement Act (1397/2016) requires contracting authorities to put procurements above certain thresholds out to open, non-discriminatory competitive tender.
• Miksi sillä on kaupallista merkitystä: A contracting authority must not only comply with the Procurement Act but also stay alert to bid-rigging cartels — a procurement procedure creates an unusually favourable setting for coordination between competitors, because tenders and their terms become public.
• Mikä menee useimmin pieleen: A simple, recurring procurement with few tenderers is a particularly attractive target for a bid-rigging cartel — it is precisely in such procurements that a contracting authority should pay particular attention to suspicious similarities between tenders.

Regulatory background

Finland's Procurement Act (1397/2016) is based on the EU's public procurement directives (including 2014/24/EU). The aim of the regulation is to ensure the efficient use of contracting authorities' funds through genuine, open and non-discriminatory competition.

These objectives are given concrete form in the procurement principles laid down in section 3 of the Procurement Act: a contracting authority must treat participants in the procurement procedure and other suppliers equally and without discrimination, and must act transparently and with due regard to the requirements of proportionality. The principles correspond in substance to Article 18(1) of Procurement Directive 2014/24/EU.

Restrictions of competition as a ground for exclusion

The Procurement Act distinguishes between mandatory (section 80) and discretionary (section 81) grounds for exclusion; participation in a bid-rigging cartel falls within the latter group, as a ground under section 81(1)(6), under which a contracting authority may exclude from the tender procedure a supplier that has entered into agreements with other suppliers aimed at distorting competition. The corresponding ground is contained in Article 57(4)(d) of Procurement Directive 2014/24/EU. This is the contracting authority's own decision, specific to that procurement: exclusion does not require the FCCA to have already established the infringement, nor does it substitute for the FCCA's investigation and possible proposal to the Market Court for a fine under the Competition Act (948/2011). A tenderer may, however, under section 82 of the Procurement Act, present the contracting authority with evidence of remedial measures, in which case the ground for exclusion may be disapplied.

Identifying bid-rigging cartels

A procurement procedure typically creates a favourable environment for a bid-rigging cartel, because tenderers know exactly when and how the competition will be conducted. The risk increases in particular where:

• the number of tenderers is small and no new operators are entering the market;
• the procurement recurs regularly in the same form;
• the product or service is simple and involves no significant technical variation; and
• the sector has an active trade association through which tenderers meet on a regular basis.

Typical manifestations of bid-rigging include cover bids (tenders that appear to compete but are intended to be rejected), agreed non-submission of a tender, rotation of winning bids among tenderers, and the allocation of market areas or customers.

Käytännön huomio

If the tenders received by the contracting authority show unusual similarities (identical spelling errors, an identical pricing structure, an unusually uniform price difference between tenders), the matter is worth investigating, and it is advisable to contact the FCCA before the award decision is made where necessary — intervening after the fact is considerably more difficult.

See also

• Procurement Procedures and Threshold Values
• Cartels and Horizontal Restrictions of Competition
• The FCCA's Investigative Powers and Dawn Raids

Sources

Lainsäädäntö ja lähteet tarkistettu 12.9.2026.