Procurement under scrutiny: Bidder exclusion as a growing weapon against anticompetitive practices

The intersection of competition law and public procurement has long been recognised as a critical area of focus in addressing anticompetitive practices. Bid-rigging – where competitors collude to manipulate the outcome of tender processes – undermines the fundamental principles of fair competition, distorts market outcomes, and ultimately costs taxpayers billions annually. Therefore, public procurement is an area where fairness and the highest standards of behaviour must be met. 

The evolving landscape of competition law enforcement reflects a fundamental shift in regulatory priorities and methodologies. Over the past years, a growing consensus has emerged among policymakers and enforcement agencies that public procurement markets constitute a cornerstone of fair economic competition. This recognition has catalysed the development of innovative enforcement mechanisms, as traditional monetary remedies may have proven insufficient to address the persistent threat of collusive practices in public tenders. 

International bodies and national competition authorities have responded by issuing comprehensive guidance and implementing enhanced deterrence measures, like bidder exclusion, which refers to the sanction by which a company is prohibited from participating in public procurement procedures for a specified period. These measures target companies engaged in public procurement activities, thereby providing an unequivocal message: companies found to have infringed competition law should not belong in public procurement processes.

1. Institutional responses underlying a policy trend

The effective deployment of exclusion powers requires substantial investment in institutional capacity, including the development of transparent assessment criteria for evaluating exclusion grounds, and the establishment of formal cooperation mechanisms among national competition authorities.

In this regard, the Organisation for Economic Cooperation and Development (“OECD”) has consistently advocated for stronger integration of competition principles into public procurement frameworks, emphasising the importance of administrative sanctions, including temporary exclusion from tender processes. In December 2022, the OECD published a Note[1] addressing bidder exclusion as an effective sanction for companies that are found liable for their participation in collusive practices relating to public procurement, acknowledging its importance as part of the potential debarment measures competition policy should count on. More recently, this focus has been evidenced through its new Guidelines for Fighting Bid-Rigging in Public Procurement^[2], published in September 2025, addressing best practices for contracting authorities. In particular, contracting authorities should warn companies about the sanctions for bid-rigging, such as fines and possible exclusion from public tenders. The OECD also recommends that contracting authorities require bidders to disclose whether they have been fined or debarred from public tenders for bid-rigging in the past five years. In the same vein, contracting authorities should analyse whether the market in question has a history of collusion, for example, by reviewing enforcement decisions from competition authorities. 

At the European Union (“EU”) level, the European Commission has kept strengthening the connection between competition enforcement and procurement integrity ever since the implementation of the Public Procurement Directive[3] in 2014. This Directive established a harmonised legal framework across Member States, creating standardised minimum requirements that enable contracting authorities to exclude economic operators based on sufficiently plausible indications of anticompetitive collusion. Article 57(4)(d) of the Directive institutionalised a predominantly decentralised enforcement model whereby contracting authorities bear primary responsibility for assessing competition-related exclusion grounds during tender evaluation procedures. This framework served as the foundation for future developments in this area, as set out in the Commission Notice on tools to fight collusion in public procurement[4], published in 2021, which provided practical guidance for implementing these exclusion mechanisms effectively. The publication of the Evaluation of the Public Procurement Directive[5] in late 2025 further demonstrated constant concern and potential policy changes in this area.

Alongside political efforts, the Court of Justice of the European Union (“CJEU”) has upheld the power of contracting authorities to exclude bidders deemed unreliable due to non-compliance with competition law. Notably, the CJEU emphasised that Member States cannot omit exclusion grounds from their national legislation transposing the Public Procurement Directive, as such an omission would deny contracting authorities the crucial ability conferred by the provision to apply those grounds[6]. The CJEU clarified that, although Member States have the power to determine the manner in which they implement Article 57, this does not mean that they can decide whether or not to transpose the facultative grounds for exclusion referred to in Article 57(4), which includes competition law infringements[7]. Thus, the EU legislator’s intention was to enable contracting authorities in all Member States to assess the integrity and reliability of economic operators participating in public procurement procedures and to ensure they have the possibility of excluding economic operators deemed unreliable.

At a national level, public procurement rules are being developed regarding potential bidder exclusion as a consequence of competition infringements, and some national competition authorities are advocating a more restrictive stance in relation to the participation of infringing companies in public tenders. 

However, the implications of this shift extend far beyond individual cases. As competition concerns in public markets gain traction across Europe, critical questions arise: Which authorities should enforce this power? How do different jurisdictions approach bidder exclusion? What are the limits that should be designed for its enforcement? This article examines these questions through the lens of recent enforcement developments, and latest policy trends among key jurisdictions, with particular focus on the weight of bidder exclusion measures and its place within the broader competition landscape. 

2. The surveillance landscape: bid-rigging and beyond

There is no doubt that bid-rigging represents the most widespread conduct sanctioned by competition authorities in public procurement contexts, as the anticompetitive conduct where competitors’ coordination negatively affects the outcome of a sale or purchasing process in tender procedures. This coordination can take many forms, including but not limited to:

• Bid suppression: coordination not to bid, or to withdraw previously submitted bids, so that the designated bidder will be successful;
• Cover bidding: submission of higher bids than the one of the designated bidder or bids with conditions or prices that will not be accepted, designed in a way to appear as fair competition;
• Bid rotation: agreements to take turns being the successful bidder, with competitors submitting artificially high bids or non-competitive offers to ensure predetermined winner secures the contract according to a pre-arranged rotation schedule among the parties; or
• Market allocation: division of markets by allocating specific customers, territories, contracting authorities, or sectors, thereby avoiding competition in designated areas.

In some jurisdictions (e.g. Portugal, Germany or Hungary), bid-rigging constitutes the only competition infringement for which a bidder exclusion sanction can be imposed, further demonstrating the concerns of national competition authorities (“NCAs”) and competition law for this form of collusion. Nevertheless, in some countries (e.g. Spain, Italy, Denmark or the UK), bid-rigging is not the sole form of competition law violation that can trigger enforcement actions and allow imposition of bidder exclusion as a sanction for a wider variety of competition infringements.

A pivotal development shaping the future trajectory of this enforcement landscape emerges from the CJEU’s judgment in Case C-416/21, Landkreis Aichach-Friedberg, which fundamentally expanded the interpretive boundaries of Article 57(4)(d) of the Public Procurement Directive[8]. This landmark ruling established that the provision’s exclusion grounds extend beyond the traditional confines of “agreements between undertakings”, encompassing a broader spectrum of anticompetitive practices that may not necessarily be limited by the scope of Article 101 TFEU. The judgment’s implications may be far-reaching, allowing countries to impose exclusion measures affecting public sector for conducts beyond bid-rigging agreements, enhancing ties between competition law enforcement and procurement integrity safeguards.

3. The enforcement landscape: the prohibition to contract with the public administration

Legal mechanisms for public procurement exclusion, predominantly targeting bid-rigging conduct, operate across EU Member States and other third countries with somewhat divergent regulatory frameworks. These differences are most evident in the areas of sanction duration, administrative discretion, and enforcement architecture, showing different deterrence and competition policies. For example, whilst Canadian law permits bidder exclusions extending up to ten years, EU Member States limit the prohibition to three years. Moreover, whilst some jurisdictions have opted for an automatic application of the prohibition, others have chosen a more flexible approach, conferring a wide margin of discretion to their designated enforcement authority.

The most consequential design choice, however, concerns institutional allocation: which authority will be in charge of enforcing this powerful tool? Jurisdictions are mainly divided between two models: (i) those in which the vested institution is the own competition authority; and (ii) the predominant one, in which these powers are assigned to the contracting authorities aiming for a more tender-specific remedy. 

The Public Procurement Directive adopts a decentralised enforcement model where contracting authorities can exclude bidders on competition grounds. However, whilst most EU Member States follow this decentralised model, some countries have opted to empower competition authorities to be able to enforce these rules. This institutional divergence determines not merely procedural mechanics, but the very nature of the prohibition, that may be conceived as a direct competition sanction or a discretional procurement safeguard. 

3.1. Jurisdictions with empowered competition authorities

When national competition authorities possess direct powers to impose exclusion as an accessory sanction alongside traditional competition fines, this generally creates a unified enforcement model that can ensure consistency between competition law findings and procurement consequences. This approach allows competition authorities to consider both deterrent effects and potential market impacts when determining exclusion scope and duration, balancing competition objectives against the risk of reducing competition in procurement markets by eliminating potential bidders. 

This is a delicate balancing act that requires deep understanding of both the severity of the infringement and its broader competitive effects. It is not a minor consideration: strike too hard, and there is a risk of eliminating competitors from procurement markets, paradoxically reducing competition. Strike too softly, and the deterrent effect evaporates. As jurisdictions continue to refine their approaches to bidder exclusion, proportionality is expected to be critical to the success of these measures. 

For bidder exclusion sanctions imposed by competition authorities, leniency programmes may play a crucial role in providing exemptions for immunity recipients, both as a safeguard and a key for competition promotion. Competition authority-imposed exclusions typically offer clearer criteria for leniency exemptions and more consistent application, balancing deterrence objectives against the risk of reducing competition in procurement markets by eliminating bidders. 

Additional considerations for this model include the potential implications of appealing the competition authority’s sanctioning decision. While exclusions imposed by contracting authorities might operate more straightforwardly, bidder exclusions imposed by competition authorities may suffer from reduced enforcement effectiveness when subject to appellate proceedings before national courts or administrative bodies, depending on local procedural law requirements. This dynamic may potentially affect the practical application and deterrent impact of the prohibition, particularly if procedural strategies allow for extensions of the appellate proceedings that could substantially diminish or entirely eliminate the practical consequences of the sanction. 

Competition authorities might be better positioned to assess this balance. For instance, Portugal's Competition Authority (“AdC”) and Spain's National Authority for Markets and Competition (“CNMC”), among other NCAs, have pioneered this enforcement approach, offering valuable early lessons for other jurisdictions considering similar reforms.

On the one hand, the Portuguese Competition Act[9] grants the AdC the possibility to exclude infringing companies from public tender procedures. In fact, in March 2020, for the first time, the AdC applied an accessory sanction disqualifying companies from participating in public tenders in the railway sector[10]. Bidder exclusion operates as a prohibition on the right of companies sanctioned for bid-rigging practices to participate in public procurement procedures for a maximum duration of two years, which represents a more restrictive temporal limitation compared to the general three-year exclusion periods adopted in other jurisdictions.

On the other hand, the Spanish legal framework for bidder exclusion was established through the Public Procurement Act of 2017[11], which establishes that companies that have been sanctioned by final decision for conduct involving distortion of competition in the market shall be prohibited from contracting with public administrations. The legislative framework expressly confers upon the CNMC the authority to impose this prohibition, which may extend up to a maximum period of three years. Until this year, the CNMC has been declaring the prohibition in its sanctioning decisions, but the State Public Procurement Advisory Board has been the body in charge of determining its scope and duration.

More recently, in July 2025, the CNMC issued a landmark decision[12] directly imposing for the first time bidder exclusion as a sanction for a competition law infringement. For more information on this decision, please read the article in the September 2025 edition of our Competitive Edge newsletter. 

In this regard, the CNMC has explicitly acknowledged potential problems for competition, recognising that bidder exclusion can produce detrimental effects on competition in public procurement markets by creating barriers to entry that may disproportionately favour incumbent operators over new market participants[13]. This observation has sparked important debate within enforcement circles, as there is a potential risk that exclusion measures could disproportionately impact smaller market participants. Small and medium-sized companies with limited market presence may face more severe competitive consequences due to exclusion, as their absence from public procurement markets may be less likely to raise concerns about reduced competition. Conversely, larger incumbents with substantial market share may weather the storm more easily under the argument that their exclusion from public procurement could negatively impact markets and consumers, particularly in highly concentrated sectors or where they represent a significant portion of available suppliers. This raises fundamental questions about the discretionary approach enjoyed by competition authorities when deploying these tools, and whether current frameworks adequately account for the differential impact across market participants of varying sizes and market power.

In any event, the Spanish Competition Act[14] provides for automatic exemption from bidder exclusion for companies that have been granted immunity under leniency programmes, hereby ensuring that cooperation with competition authorities is not undermined by subsequent procurement disabilities. Also, according to the Spanish Public Procurement Act, contracting authorities shall not declare these prohibitions where the sanctioned company meets two cumulative conditions: (i) payment of (or formal commitment to pay) the fines imposed in the sanctioning decision and (ii) implementation of appropriate technical, organisational and personnel measures designed to prevent future infringements.

3.2. Jurisdictions with contracting authorities with independent powers

In those legal systems where contracting authorities possess independent powers to exclude bidders upon detecting competition infringements during procurement procedures, a decentralised enforcement model is created. This model, more in line with the Public Procurement Directive, complements competition authority sanctions whilst ensuring procurement integrity at the point of tender evaluation. 

This model is widely followed in most EU jurisdictions and the UK, sharing many similarities regarding the exclusion of companies from public tenders. Our analysis focuses on six common aspects: (i) the existence of mandatory and discretionary exclusion grounds; (ii) the interplay with competition authorities; (iii) the emerging trend of centralised lists for competition infringements; (iv) the duration of the exclusion; (v) the possibility of adopting so-called ‘self-cleaning measures’; and (vi) the evidentiary threshold for bidder exclusion. 

1. Mandatory and discretionary exclusion 

For starters, jurisdictions applying this model generally contain both mandatory and discretionary exclusion grounds that contracting authorities can apply when conducting a public procurement procedure. However, while in most countries, competition infringements are treated as a discretionary ground for exclusion (i.e. contracting authorities may exclude an economic operator), other countries have gone one step further. 

For instance, Danish public procurement law mandates exclusion if the candidate or tenderer has been found guilty of a “grave professional misconduct which calls into question its integrity”, including violations of competition rules. In the UK, the Procurement Act 2023[15], which recently came into force, introduced a mandatory exclusion category for competition infringements. This applies when the Competition and Markets Authority (“CMA”) or another regulator finds that a supplier has engaged in cartel activity (including bid-rigging, price fixing or market sharing), or has been convicted of the criminal cartel offence, and the circumstances giving rise to the exclusion ground are continuing or likely to occur again. 

2. Interplay with competition authorities

Secondly, there is usually a common denominator regarding the interplay between competition authorities and contracting authorities. Ongoing investigations or decisions adopted by competition authorities serve as a basis for contracting authorities to then exclude companies from public tenders. Therefore, the exclusion decision remains at the contracting authority’s discretion. 

Nevertheless, some countries have moved towards more integration between competition enforcement and procurement. In Germany, the federal competition authority (“FCO”) is also in charge of the Competition Register for Public Procurement (“CRPP”)[16], which provides contracting authorities with information helping them to assess whether a company must or can be excluded from a tender procedure for having committed certain economic offences. Similarly, the UK has explicitly linked its leniency programme for cartels with procurement consequences. Under the CMA’s updated leniency guidance, first-in applicants (Type A immunity) receive not only guaranteed corporate immunity from fines, but also exemption from exclusion and/or debarment under the Procurement Act. Where an investigation is already underway (Type B immunity), applicants may receive significant fine reductions. Type B applicants exceptionally granted 100% immunity from penalties would also benefit from the Procurement Act exemption as an “immunity recipient”. Later applicants (Type C immunity) may obtain up to 50% penalty reduction and, exceptionally, individual immunities.

3. Centralised lists for competition infringements

Most EU jurisdictions do not have a single national debarment registry exclusively for competition law infringements, which rely on standard self-declaration forms (where companies must declare any anticompetitive infringement) and on contracting authorities checking decisions of competition authorities as needed. However, there are a few exceptions where there is some kind of monitoring by the authorities. For example, in Germany, the FCO manages the previously mentioned CRPP. The Netherlands uses a Certificate of Conduct for Procurement (“GVA”), effectively a background certificate that companies must obtain to be awarded the contract. While Dutch contracting authorities have the discretion to exclude a bidder, companies that have been irrevocably sanctioned for competition law infringements may face difficulties in obtaining the GVA, which generally need to be submitted to obtain the final award of the contract.

In the UK, the Procurement Act 2023 has brought into use a centralised digital platform, the so-called Central Debarment List[17] as a single platform used for making bids on all public procurement contracts, as opposed to the specialised systems for different sectors before it. This is very useful to the CMA as it allows it to run its screening and AI tools on a centralised system, improving its efficiency and the transparency of bids. 

4. Duration of the exclusion 

Furthermore, when EU Member States do not specify the duration of the exclusion in their national legislation, the Public Procurement Directive establishes a default maximum period of three years for bidder exclusions on competition law grounds[18]. The vast majority of jurisdictions align with the Directive and limit bidder exclusions to three years from the date of the relevant event. By contrast, in the UK, “excluded” or “excludable” companies can be placed on the Central Debarment List for up to five years. 

5. Self-cleaning measures

Moreover, most EU jurisdictions and the UK allow excluded bidders to provide evidence demonstrating the timely adoption of remedial measures (so-called ‘self-cleaning measures’)[19]. These measures include, but are not limited to, compensation for damages, cooperation with the investigating authorities and the adoption of concrete compliance programmes to prevent recurrence. If such measures are considered as sufficient by the contracting authority, the company will avoid the exclusion from the procurement procedure. However, some jurisdictions limit the scope of these self-cleaning measures. For example, in Denmark, self-cleaning is not possible if there is a final judgment prohibiting the candidate from contracting with the public administration, whereas in Hungary, it can be either the Hungarian Public Procurement Authority or a court who declares, in a final decision, that the candidate or tenderer has taken corrective measures that sufficiently demonstrate its reliability. 

6. Evidential threshold 

The evidentiary threshold for excluding bidders remains a major difference between jurisdictions where contracting authorities are empowered to exclude bidders. Nevertheless, we can distinguish two main approaches to this matter. On the one hand, there are countries (e.g. Germany or Denmark) where contracting authorities can exclude bidders based on sufficiently credible indications of their participation in agreements or concerted practices which have the object or effect of preventing, restricting or distorting competition – even without a final decision from the competition authority or final court judgment. On the other hand, other countries, such as Italy or Belgium, have taken a stricter stance: contracting authorities can only exclude a bidder if a competition authority has issued a formal decision confirming the infringement. For instance, in the case of Hungary, bidder exclusion requires an additional condition as it is only possible if the competition authority or a court find the bidder guilty of the competition infringement and impose a fine. 

4. Trends in detection and prevention of bid-rigging infringements 

Based on the foregoing, one might well ask: how do competition authorities and contracting authorities detect potential bid-rigging practices?

As bid-rigging schemes grow increasingly sophisticated, competition authorities are turning to advanced technological tools to enhance their detection capabilities of potential breaches of competition law. The use of artificial intelligence (“AI”) is proving particularly useful in identifying suspicious bidding patterns – such as coordinated price movements, systematic bid rotation, or unusual correlations between supposedly independent tenders – with unprecedented speed and accuracy. Some competition authorities are even developing their own AI-powered screening tools. 

In 2024, the Economic Intelligence Unit of the CNMC launched BRAVA (‘Bid Rigging Algorithm for Vigilance in Antitrust’)[20], an AI-driven tool that classifies the bids submitted by companies in a tender as potentially collusive or competitive. The key to BRAVA lies in its algorithm based on machine learning, which uses the Spanish public procurement database as its source and has enabled the creation of a pioneering tool worldwide among competition authorities. 

In the same vein, the CMA has been working on AI detection tools since 2017, when it launched a software tool to fight bid rigging[21] and, in January 2025, the CMA announced the trial of an AI tool designed to detect collusion in public procurement by scanning and analysing bidding data at scale[22]. The pilot has already proved successful with one government department.

Other NCAs in Europe are also taking steps to incorporate IT tools into bid-rigging detection. For example, in November 2022, the French Competition Authority initiated a project to detect cartels in public procurement by using data science techniques, combining public procurement data with other public sources, and creating indicators identifying anomalies[23]. 

Outside Europe, competition authorities are also benefiting from AI to fight anticompetitive behaviour. For instance, in July 2025, the Brazilian Competition Authority used its AI system (‘Project Cérebro’) to cross-reference a vast amount of data which contributed to the opening of a cartel investigation[24].

Despite the foregoing, recent informal policy statements by the French and Irish competition authorities[25] emphasised a renewed focus on public procurement markets and the urgent need for better detection tools and data access to strengthen enforcement in these sectors. Therefore, it seems that there is broad room for improvement in reference to detection tools.

5. Practical considerations and recommendations

The intensifying focus on public procurement markets by competition authorities worldwide signals a fundamental shift in enforcement priorities. As indicated by the constant and recent developments across multiple jurisdictions, the integration of competition law enforcement with procurement integrity mechanisms is currently at the forefront of enforcement efforts. 

As competition law has raised increasing concerns over public procurement markets, debarment sanctions for competition infringements, such as bidder exclusion, have emerged as a critical deterrence consideration for companies. Also, competing bidders are likely to be aware of competition infringements by fellow bidders, given that this information is generally publicly available, and may alert the contracting authorities. 

The threat of exclusion from public tendering fundamentally reshapes corporate compliance strategies. In particular, for companies operating in public procurement markets, the emergence of bidder exclusion as a potential mainstream enforcement tool requires a fundamental reassessment of compliance strategies and management frameworks in order to help reduce the risk or even avoid bidder exclusion.

In this regard, organisations should prioritise the implementation of robust competition compliance programmes specifically tailored to procurement activities, encompassing regular training for personnel involved in tender processes, clear policies governing interactions with competitors, and systematic monitoring of bidding activities. 

Enhancing capabilities in this regard will depend on understanding an always-changing environment with different relevant approaches followed in each jurisdiction. Although particular attention should be devoted to establishing internal protocols for identifying and escalating potential competition concerns before tender submissions, strategy and preparation when facing public tenders will be a must for competition compliance.

For more information or further guidance in this area, please contact Candela Sotés, Pablo Rodríguez Sousa and Álvaro López de Ochoa García. 

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