Repercusiones de la Delimitación del Mercado Relevante en Acuerdos Anticompetitivos por Objeto en Licitaciones Públicas.

Abstract

This legal study focuses on the application and interpretation of norms related to anti-competitive agreements by object in public tenders. Through a compilation of doctrinal information and analysis of cases, descriptive, deductive, and comparative methods are used to achieve a coherent conclusion that supports the proposed hypothesis and fulfills the general objective. In the context of investigations conducted by the Superintendence of Industry and Commerce (SIC) regarding anti-competitive conduct in public tenders, it is essential to define the relevant market. This delimitation implies establishing both the product or group of products and the specific geographical area in which the effectiveness and suitability of anti-competitive conduct will be examined. Thus, in the case of public tenders, the delimitation of the relevant market is based on the conditions stipulated in the bidding terms, such as the object, budget, location, and execution period. However, this study argues that this delimitation also involves considering the subjective qualities of the market agents involved, such as their financial, legal, technical capacity, and other enabling requirements or scoring criteria established in the selection process, which could be affected by anti-competitive agreements. Therefore, it is necessary to analyze whether the inclusion of the qualities and abilities of market agents is permissible when delimiting the relevant market in investigations of anti-competitive agreements by object in public tenders. If such a thesis is not admissible, sanctions could be imposed on the investigated parties, who would be barred from participating in the allegedly affected market. In this regard, an accusation demonstrating the existence of an anti-competitive agreement whose object is collusion in tenders or the distribution of contract awards must consider the implications of the limitation of the relevant market and its relationship with the qualities of market agents.