All employees and personnel under temporary/agency contracts, (“Staff”) are required to ensure that the Group avoids any conduct which could be considered anti competitive. This is a statutory obligation therefore Staff must comply with this policy. This policy document also provides guidance regarding the relevant legislation and the sorts of conduct which could be considered anticompetitive, and which the Group, and therefore Staff must avoid.
Competition law is a complex, regulated area. In the event of any doubt, Staff should ensure that appropriate legal advice is taken.
In order to prevent the Group from facing claims that it has infringed competition law, Staff must do the following:
• ensure that any agreement or other conduct which they consider could be anti-competitive is reported to a director and, where appropriate, external legal advice is sought on the issue;
• ensure that they (and with reference to line managers – their teams) have received appropriate training on how Competition Law affects the Group;
• if approached by a competitor who proposes involvement in an anticompetitive practice, s/he must record this contact in writing and report this to a director;
• seek to limit contact with competitors to instances where this is strictly necessary for carrying out a project with which the Group is engaged, and which has a legitimate purpose; and
• with reference to Joint Ventures, or Consortia, Staff must also take care when collaborating on projects with third parties (particularly competitors), appropriate contractual and procedural documents and safeguards must be in place in order to ensure compliance with the law.
Failure to comply
Any breach of this policy may expose the Group to civil or criminal proceedings and could result in a criminal prosecution against a member of Staff personally. Therefore any breach of this policy will constitute a serious disciplinary offence.
In essence, the Group and its Staff must do nothing which could prevent, restrict or distort competition in any markets in which the Group is active in the UK or elsewhere. Such conduct would risk infringing the Competition Act 1998 (“Act”) and/or also the Enterprise Act 2002. Should the Group engage in cross-border activities, anti-competitive conduct could also breach the EU Treaty or national competition laws of individual countries.
Chapter I of the Act prohibits written or oral agreements which prevent, restrict or distort competition which may affect trade within the UK. Chapter II of the Act prohibits any abusive conduct by one or more undertakings in a dominant position which may affect trade in the UK. In practice, the Chapter I prohibition is more relevant to the Group. This prohibition catches the following types of agreement:
• an agreement between competitors to fix prices, share markets, or restrict output;
• an agreement with another business designed to keep a competitor out of the market; and
• collusive tendering practices (discussed below).
Collusive tendering is an area of particular concern for the Group. This is a type of practice which has been condemned recently by the Office of Fair Trading following investigations into the construction sector. Collusive tendering can involve the following practices:
• an agreement between tenderers to set prices at a certain level;
• one tenderer providing or accepting a token (not genuine) price to another tenderer which the tender is intended to return in the bidding process (this is known as cover pricing);
• tenderers agreeing to "take turns " in winning contracts (bid rotation);
• providing a competing tenderer with details of the price which the group intends to bid (or receiving such information from a competing tenderer in relation to its own prices);
• an agreement that one tenderer should not return a bid (bid suppression); and
• certain collusive sub contracting arrangements.
Investigation and enforcement
Competition Law is policed by the Office of Fair Trading (“OFT”). The Act gives this body wide-ranging investigative powers. These include for example, powers to:
• enter business premises (with or without a warrant) of companies under investigation;
• seize documents or computers;
• require directors or employees to provide explanations of documents; and
• request interviews.
In addition, the OFT may co-operate with the Serious Fraud Office where its investigations uncover certain criminal activity.
If any agreement or conduct is found to infringe the Act, then the consequences are:
• the OFT can fine the parties involved up to 10% of their group, global annual turnover;
• anti-competitive agreements will be unenforceable (in whole or in part);
• third parties which have suffered loss by reason of the offending restrictions or conduct could sue for damages before the Courts;
• competition disqualification orders can be made against current directors and previous directors owing to their role in the breach of competition law in question. This disqualification can last up to 15 years;
• serious reputational damage; and
• possible debarment from contracts with public sector bodies or utilities companies (under the procurement rules).
The Enterprise Act 2002 also introduces a criminal offence for cartel activity. Cartel activity is defined as agreements between competitors which relate to price fixing, bid rigging, limiting or preventing supply and market and customer sharing. Persons guilty of the cartel offence are liable to a maximum of five years imprisonment and/or an unlimited fine. It is therefore possible that companies and individuals could be subject to both criminal and civil proceedings in certain circumstances for breach of the Chapter I prohibition.
Group Chief Executive