In a recent judgment Norway’s Supreme Court has concluded that competition rules bar tender consortia between players that could have submitted separate bids.

The Court held that if such players submit a joint bid instead of bidding separately, their cooperation is automatically deemed to restrict competition. Instead of the usual case-by-case assessment of the effects of an agreement, the Court concluded that an agreement to team up and bid jointly is in itself anti-competitive. This strict approach is normally reserved for price-fixing, market sharing and the like.

The Supreme Court’s conclusion is unprecedented in the case-law from the EU courts, and forces bidders for contracts in the Norwegian market to take a particularly cautious approach to possible consortia. The full text of the judgment is available here (in Norwegian).

The judgment will have significant implications for suppliers in industries involving large and complex projects, such as offshore and onshore construction. Teaming up for large projects has been a key strategy to strengthening bids for projects and reducing commercial risk. As a result of the judgment, no such consortia can be formed in Norway without a prior assessment of the legal risk.

If a joint bid should later be found to be in breach of competition rules, the parties will be exposed to very significant fines – up to 10% of annual group turnover.

In the seminar on 29 August, we will discuss how to navigate the legal risks involved in tender consortia in the Norwegian market going forward.

Questions include:

• How to determine whether a possible consortium partner may be deemed a potential bidder?
• In which situations can a joint bid be permissible?
• How to handle information sharing with a possible consortium partner?
• Which steps can be taken to minimize legal risk in bidding consortia?
• How can a joint venture model be used to maximize freedom of action in future projects?

The seminar will focus on the offshore supply industry, but is equally relevant to onshore construction. Christopher L. Sveen and Kristine Hyldmo will draw on their offshore industry expertise to highlight the key practical challenges raised by this judgment, while competition law expert Simen Klevstrand will discuss the legal implications of the judgment.

If you would like to attend on the morning of August 29th in Oslo, please send us an email. The presentations will be held in Norwegian.