The Treasury clarifies that it cannot punish the ‘construction cartel’ until the sanction is firm

Oct. 15 () –

The Ministry of Finance has clarified in Congress that it cannot exclude construction companies sanctioned by the National Commission for Markets and Competition (CNMC) from public contracting until the resolution is final.

This is made explicit in a parliamentary response, collected by Europa Press, to the economic spokesperson for Ciudadanos, María Muñoz, who last July asked the Government if it planned to apply the prohibition on hiring provided for in the Public Sector Contracts Law for this type of infractions.

All this one day after informing the CNMC of the imposition of fines for a total of 203.6 million euros to six of the main Spanish construction companies –Acciona, Dragados (Grupo ACS), FCC, Ferrovial, OHL and Sacyr– for altering thousands of public tenders for the construction and civil works of infrastructures for 25 years.

In its resolution, the supervisor determined the prohibition to these companies to contract with the Administration. However, the Executive in its response indicates that the application of this prohibition will proceed in the terms provided in the Contract Law and in accordance with recent jurisprudence, “in such a way that it is essential to wait for the resolutions to be firm.”

SANCTIONS FOR MORE THAN 200 MILLION

The companies and sanctions imposed by Competition last July are Acciona (29.4 million), Dragados (57.1 million), FCC (40.4 million), Ferrovial (38.5 million), OHL (21.5 million) and Sacyr (16.7 million).

According to the supervisor, these six companies met weekly since 1992 and decided on the public contracts in which they were going to share technical work from their offers. In addition, they exchanged information on their strategy for presenting themselves to public tenders. These tenders affected infrastructures of general interest such as hospitals, ports and airports, and highways.

Among the public administrations affected are basically those belonging to the field of development, including the Ministry of Development (current Ministry of Transport, Mobility and Urban Agenda) together with its dependent public business bodies and entities.

‘MODUS OPERANDI’

The ‘modus operandi’ of the sanctioned companies consisted of weekly meetings, which began in 1992, to analyze the public works tenders published, decide on the tenders they were going to share, jointly commission work from external companies, and exchange sensitive commercial information. For example, their intention to participate or not to tenders, or the intention to form UTEs (Temporary Union of Companies) and the members that would integrate them.

The companies could not modify the works generated jointly to present them in their offers without the knowledge and approval of the rest of the members of the group. The only customization allowed was the inclusion of logos and names of each company in the joint document “to give administrations an appearance of independence in the presentation of offers,” according to the CNMC.

The agency indicates that the companies dissolved the group in 2017 and expressly stated that these agreements could be contrary to the rules of the Defense of Competition.