The CNMC has sanctioned 12 companies in the construction sector with a total of 61.28 million euros for an infraction constituting a cartel consisting of the alteration of the bids for road maintenance and operation services called by the Ministry of Development ( current Ministry of Transport, Mobility and Urban Agenda) from 2014 to 2018. Among those sanctioned are subsidiaries of the six large Spanish construction companies: ACS, FCC, Sacyr, Ferrovial and OHL.
Competition investigates whether Ferrovial and other construction companies have manipulated road tenders “since at least 2014”
The CNMC considers that companies have committed a very serious infringement prohibited by article 1 of Law 15/2007 on the Defense of Competition and article 101 of the Treaty on the Functioning of the European Union. (S / 0013/19).
The sanctioned companies are Acciona Mantenimiento de Infraestructuras, SA and jointly and severally its parent company Acciona, SA, Aceinsa Movilidad, SA) Alvac, SA, API Movilidad, SA and jointly and severally its parent ACS, Audeca, SLU (Audeca) and jointly and severally its parent Elecnor, SA , Sociedad Anónima de Obras y Servicios Copasa (COPASA), Elsamex, SA (Elsamex), Elsan, SA (Elsan), and jointly and severally its parent company Obrascón Huarte Laín, SA, Ferroser Infraestructras, SA and jointly its parent, Ferrovial, Innovia Coptalia, SA (Innovia) and jointly and severally its parent Copcisa Corp. SL, Mantenimiento de Infraestructuras, SA (Matinsa) and jointly and severally its parent company Fomento de Construcciones y Contratas, SA, Sacyr Conservación, SAU (Sacyr Conservación) and jointly and severally its parent Sacyr, SA
The highest penalties have corresponded to API, a subsidiary of ACS (11.78 million); Matinsa, from FCC (8.54 million); Alvac (5.86 million); Ferroser, from Ferrovial (5.17 million); Copasa (5.6 million); Sacyr Conservation (5.17 million); and Elsamex (4 million).
The operation of the cartel was developed through meetings “to drink coffee” where the companies that were part of it periodically established the criteria for coordinating the economic offers to be presented in the bids of the Ministry of Public Works for road maintenance services in the State Highway Network.
The cartel grouped the different tenders into groups for which common criteria for the presentation of economic offers were agreed. The cartel assigned a “bag” of points for each group of tenders that were consumed by the companies based on the level of discounts on the contracting budget. The higher the losses they presented in their respective economic offers, the more points were spent, applying a specific formula for each group of contracts.
This limited the number of contracts in which companies presented high discounts in each group of tenders, since the number of points in the bag was never enough to try to win all the contracts in each group.
This system, according to the CNMC, encouraged each cartel company to concentrate its awarding possibilities on a limited number of tenders, presenting in the remaining tenders with little or no awarding possibilities. This is what are called coverage offers.
The companies also agreed on the discount threshold for these coverage offers and committed to submitting offers in all tenders in each group. In this way, it was possible to alter the abnormality threshold (calculated on the basis of the bids submitted in each tender) and they could get bids from truly competitive companies outside the cartel to be excluded from the contracting process.
The CNMC highlights that “the sophisticated system designed by the companies was adapted to the successive changes in the contracting specifications introduced by the administration. The mechanics used by the cartel were particularly complex, facilitating the monitoring of its compliance while making its detection extremely difficult ”.
70% of the awards
The CNMC has been able to prove that the cartel operated between February 2014 and December 2018, although conversations have been detected since 2009. The participating companies were awarded 71 tenders out of a total of 101 that the Ministry of Public Works related to the provision of services of conservation and exploitation of the State Highway Network.
The total amount of the awards to cartel companies exceeded 530 million euros, which represents 63% of the total amount awarded by the Ministry for the conservation services of the State Highway Network, which gives an idea of the impact and scope of this cartel.
In October 2017, the CNMC received anonymous information warning of the possible existence of a cartel that affected the market for the provision of road maintenance and operation services. Following the inspections carried out at various headquarters of the companies that were part of the cartel in 2018, in July 2019 a sanctioning proceeding was initiated against 13 companies and in December 2020 Ferrovial Servicios was included in the same sanctioning proceeding that has not been finally sanctioned as the author, but as jointly and severally liable for the conduct of its subsidiary.
The CNMC has decided to send the notification of this resolution to the State Contracting Board in order to initiate the procedure for determining the duration and scope of the sanctioned companies, to the extent that they can continue to be bidders in public procurement procedures. . This procedure, the decision of which ultimately rests with the Ministry of Finance, has never been applied.
The Aceinsa company has benefited from a 50% reduction on the total fine imposed by having provided evidence that has allowed the CNMC to detect and prove the existence of the cartel. In addition, the aggravating circumstance has not been applied to this company, since it has been considered that its valuable collaboration through the leniency program means that it cannot be considered that it has established mechanisms to guarantee the execution of the conduct. Therefore, the fine imposed on Aceinsa has been 1,605,648 euros. Furthermore, Aceinsa has not been included in the prohibition of contracting with public administrations.