The Bundeskartellamt has imposed fines totalling 10.5 million euros on seven road repair companies for bid rigging and customer allocation. The companies involved were AS Asphaltstraßensanierung GmbH, Langwedel, Bausion Strassenbau-Produkte GmbH, Landsberg, Bitunova GmbH, Krefeld, Gerhard Herbers GmbH, Spelle, Liesen … alles für den Bau GmbH, Lingen, Mainka Straßenunterhaltung, Rüdersdorf near Berlin, and MOT Müritzer Oberflächentechnik GmbH, Röbel/Müritz.

Andreas Mundt, President of the Bundeskartellamt: “Over a longer period of time, the companies assigned numerous public contracts for road repairs and renovations to one another. Ahead of upcoming tenders, it was agreed which company should be awarded the contract. To secure the desired outcome, the other companies then often submitted protective bids, whose minimum amount was also agreed in advance. The public sector can only procure goods and services economically and efficiently if there is effective competition. Illegal agreements can significantly damage public contracting authorities, which ultimately has to be borne by all citizens.”

In 2018 and 2019, AS, Bausion, Herbers and Bitunova allocated certain contracting authorities from Saxony, Thuringia and Saxony-Anhalt to each of the companies. For this purpose, they assigned each district in the three federal states to one or several bidders. The allocation of the areas was outlined on a map. When tenders came up, one of the companies assigned to the relevant district should then be awarded the contract. It was agreed beforehand – sometimes in code language – which of the companies would participate in the tender and what the minimum price of the protective bids would be. Two companies formed a (supposed) consortium to implement the collusive arrangement. In addition, contacts between the companies were often disguised as requests to form a bidding consortium or requests for subcontracts.

Between 2016 and 2019, Bausion, Liesen, Mainka and MOT regularly colluded in public tenders in Brandenburg and (only in 2016 and 2017) Saxony-Anhalt, while Liesen and MOT also colluded in tenders in Mecklenburg-Western Pomerania. To this end, the companies maintained regular contact both in person and by telephone, and from 2017 also met regularly for breakfast at a hotel near Berlin. They then clarified who was interested in which tender, who should be awarded the contract in question, and they agreed on minimum prices which the other companies should charge in their protective bids. In larger tenders by road construction authorities of the Länder, the participating companies were each assigned a lot.

The violations concerned numerous tenders and contracts awarded by public contracting authorities, such as municipalities and Länder road construction authorities. The contracts included more simple road repairs (surface dressing, surface patching, crack repairs) or the supply of bitumen emulsion or grit, with contract values generally ranging from 40,000 euros to 200,000 euros.

Besides being relevant under competition law, bid rigging is also a punishable offence under Section 298 of the German Criminal Code (StGB). The Bundeskartellamt is the competent authority for prosecuting the companies, while public prosecution offices prosecute the individuals involved. In the present case, the Bundeskartellamt carried out a dawn raid in September 2019 in cooperation with the Düsseldorf Public Prosecution Office and North Rhine-Westphalia’s Criminal Police Office, and worked together constructively with the prosecuting authorities throughout the proceeding.

In setting the fine the Bundeskartellamt took into account that Bitunova GmbH cooperated with the authority under the leniency programme. All proceedings could be concluded by way of settlement. The decisions imposing the fines are already final.

A case summary in accordance with Section 53(5) of the German Competition Act (GWB) will be published shortly on the Bundeskartellamt’s website.