Transparency and Competition in Public Procurement: A Comparative View on Their Difficult Balance

Abstract

This contribution provides some comparative reflections on the need for public procurement systems to reach an adequate balance between their transparency requirements and the risks of collusion among tenderers, or bid rigging. It first provides a concise account of the risks of cartelisation that derive from excessive transparency in procurement settings. The chapter then proceeds to sketch the EU level rules aimed at empowering contracting authorities to withhold competition-sensitive information where its disclosure might prejudice fair competition between economic operators. At this stage, the chapter concentrates on the domestic transposition of the EU rules in nine selected jurisdictions: Denmark, Germany, Finland, France, Italy, Poland, Romania, Spain and the United Kingdom. It first assesses their rules in the books and places the domestic systems in a spectrum that goes from ‘transparency-first’ to ‘competition-first’ systems. The chapter then concentrates on domestic administrative practice to assess whether more nuance can be identified in practice. The chapter concludes with some comparative reflections concerning the substantive balance achieved in different jurisdictions, as well as on the diverging institutional arrangements adopted in these nine EU member states. The conclusion suggests that more direct involvement in the production of guidance by the European Commission and the European Competition Network would be desirable and productive.

Keywords: transparency, competition, disclosure, pricing, debriefing, commercial interests, trade secrets

JEL Classification: H57, K21, K23, K41, K42