On September 18, 2019, the Italian Competition Authority (the “ICA”) issued a decision[1] finding that Com Metodi S.p.A. (“Com Metodi”), Sintesi S.p.A. (“Sintesi”), Igeam S.r.l., Igeamed S.r.l. and Igeam Academy S.r.l. (jointly, “Igeam”) participated in a cartel affecting the outcome of the open tender procedure for the provision of integrated health and safety management services in the workplace at Italian public administrations, launched by Consip S.p.A. (“Consip”), the central purchasing agency owned by the Ministry of Economy and Finance, in December 2015 (the “SIC 4 Tender” and the “Decision”, respectively).

The SIC 4 Tender and the opening of the investigation

In December 2015 Consip launched the SIC 4 Tender, divided into 9 geographical lots and having a total value of approximately €100 million.In January 2018 Consip noted anomalies in the economic offers submitted by certain tender participants and reported to the ICA its suspicions about possible collusive conducts. On March 14, 2018, the ICA started its investigation into whether the alleged bid-rigging violated Article 101 TFEU.

The ICA’s findings

According to the ICA, Com Metodi, Sintesi and Igeam – the three main market players – coordinated their bidding strategy according to a “chessboard” pattern. In some lots they strategically offered different discounts, while in others they did not submit any offer at all. In this way their bids never overlapped. Each of Com Metodi and Sintesi participated in the SIC 4 Tender as the respective representative of two ad hoc consortiums of undertakings (“RTIs”).[2] The ICA found that the undertakings that acted as their principals (i.e. Deloitte Consulting S.r.l. (in the case of Com Metodi) and Adecco Formazione S.r.l., Archè S.c.a.r.l., CSA Team S.r.l., Nier Ingegneria S.p.A. and Projit S.r.l. (in the case of Sintesi)) were not made aware of the RTIs’ bidding strategies, since they knew neither the lots for which their RTI was bidding, nor the terms of the economic bids.[3]

The ICA found that Com Metodi, Sintesi and Igeam had exchanged sensitive information before and after submitting the bids. Moreover, the ICA held that the bidding strategies of Com Metodi, Sintesi and Igeam were economically irrational, and could only be explained by their participation in a collusive scheme.

According to the ICA, the cartel was aimed at sharing the lots between the participants in a way that allowed them to retain their historical market shares. However, the anticompetitive strategy was not fully implemented, as Com Metodi, Sintesi and Igeam faced aggressive competition from two undertakings that did not take part in the cartel, and lost certain lots to them.

The ICA held that the collusive conducts of Com Metodi, Sintesi and Igeam gave rise to a ‘by object’ restriction of competition in violation of Article 101 TFEU, and did not investigate further their effects on the market.

The fines

The ICA considered the value of sales to be: (i) the amount awarded, where the undertaking won the bid; and (ii) the amount of the offer, where the undertaking was supposed to win the bid according to the anticompetitive plan, but actually did not, due to competition from outsiders. On this basis, the ICA applied a 15% increase on account of gravity because the undertakings carried out a hardcore restriction of competition. However, the ICA then reduced Com Metodi’s and Igeam’s fine by 5% each as they had adopted an antitrust compliance program. As a result, Com Metodi was fined €1,359,022, Igeam was fined €1,173,387, and Sintesi was fined €700,182. No fine was imposed on Deloitte Consulting S.r.l., Adecco Formazione S.r.l., Archè S.c.a.r.l., CSA Team S.r.l., Nier Ingegneria S.p.A. and Projit S.r.l., which were found not to be involved in the cartel.

[1]              Consip/Gara Sicurezza e Salute 4 (Case I822).

[2]              In Italian, Raggruppamento Temporaneo di Imprese (temporary associations of undertakings).

[3]              Decision, § 336.