So, what’s the damage?

The statement of objection issued by the Office of Fair Trading points the finger directly at the British construction industry. Many may claim that cover pricing was a rational (albeit illegal) response to an inefficient procurement process, and one that is increasingly outmoded. For the individual companies, however, the most pressing question is how the statement of objections will affect them. Companies will have several key concerns: the calculation of fines, de-listing and claims for damages.

Fines

A picture of the possible financial penalties levied against companies can be obtained by analysing the OFT’s previous practice and guidelines. The OFT may impose a financial penalty on a company that has intentionally or negligently committed an infringement of the relevant competition rules. The OFT determines, on a case by case basis, the level of financial penalty to be imposed.

The OFT uses a five-step approach to calculate fines:

(1) It calculates a starting point, taking into account the seriousness of the infringement and the company’s turnover in the last business year, to a maximum of 10% of worldwide turnover.

The OFT has regard to the market for the product and where that market is located. Clearly, it is beneficial if these markets are construed as narrowly as possible to limit the basic turnover used for calculation.

(2) The starting point is then multiplied by the number of years over which the infringement lasted. If the infringement lasted less than a year, a minimum of one year would apply.

(3) An increase or decrease is applied for “deterrence” taking into account the financial benefit of the infringement and the company’s market position.

(4) The amount may be further increased or reduced if there are aggravating or mitigating factors (for example, if the company acted as a leader or instigator, or if it co-operated with the OFT).

(5) The fine cannot exceed 10% of the firm’s worldwide turnover in the past business year and must be offset against any fines levied in other member states.

Finally, the OFT applies any reduction for leniency which has been granted to the infringing company.

De-listing threats

A key concern is the threat of de-listing by public authorities. According to the procurement regulations, public procurers are not obliged to exclude companies implicated in cover pricing. Even so, there is a risk of a knee-jerk response by public authorities to suspend companies from their tender lists.

The OFT published a note to local authorities on the morning of 17 April that has gone some way to alleviating these concerns. The note reminds authorities, inter alia, that no assumptions should be made as to any infringement of competition law by companies listed in the statement of objections.

The OFT highlights the exposure of public authorities if they were to de-list individual companies given that “cover pricing was a widespread and endemic practice in the construction industry as a whole”. The OFT further emphasises that even if a company is named in the statement of objections, “companies that have applied to the OFT for leniency are under an obligation to put their house in order as part of their leniency agreement with the OFT and are therefore unlikely to be now engaging in cover pricing or other forms of bid rigging.”

Damages

It is well established that claimants are able to recover damages for breach of competition law. Private enforcement of the competition rules is increasing and the wider use of no-win, no-fee arrangements have further swelled the number of actions.

The courts’ approach to the calculation of damages is to restore the claimant to the position that it would have been in had the breach of competition law not been committed. Any claimant would need to establish a causal link between the loss suffered and the alleged breach of the competition rules. However, with cover pricing, the bids were tightly contested under lowest price tendering and causation will be difficult to establish. The prospect of large damages claims may well be wishful thinking on the part of claimants. Nevertheless, construction companies are clearly concerned about the time and money required to defend themselves against third party actions, no matter how ill-founded.

Loss of reputation

The 112 construction companies may, quite rightly, feel sore that the OFT has opted to make an example of them with respect to “widespread and endemic” practices. In so doing, the OFT may also have discredited and divided the British construction industry both nationally and internationally.