Abstract

This paper aims to systematise the prerequisites for collusive tendering, as applied in the case law of the National Appeals Chamber (NAC) and the decisions of the President of the Office of Competition and Consumer Protection (the President of the OCCP). In addition, recommendations are formulated for contracting authorities to collect and analyse data for proceedings involving allegations of tender collusion. The study is based on the content of 102 decisions of the OCCP and 71 judgments of NAC. The analysis of rulings by both authorities allowed three groups of reasons for collusion to be identified (links between contractors, atypical behaviour of contractors in the course of the procurement procedure and similarity in the content of bids), including 19 items in total. The approach of these two bodies to the prerequisites of collusion is convergent. Nevertheless, the standard of proof expected by the NCA seems to be significantly higher than in the case of proceedings before the President of the OCCP. In addition, the decisions of the NCA generally do not include an analysis of the past actions of assessed contractors, which is a standard element of the assessment performed by the President of the OCCP. The conclusions from the study also made it possible to formulate a proposal for a three-stage procedure of collecting and analysing data aimed at estimating the risk of collusion in a public procurement procedure.