Collusion in public procurement and public competition

Legal definiton 

Section 257 of the Criminal Code:

(1) Whoever commits collusion in connection with public procurement or a public competition by:

a) using deceit or threats of violence or other serious harm to induce another person to refrain from participating in the procurement procedure or public competition,

b) providing, offering, or promising any financial or other benefit to another to induce them to refrain from participating in the procurement procedure or public competition,

c) requesting or receiving any financial or other benefit in exchange for refraining from participating in the procurement procedure or public competition,

d) engaging in activities based on an agreement with another interested party or applicant to ensure the awarding of a public procurement at an unreasonably high or otherwise disadvantageous price,

shall be punished by imprisonment for up to three years or disqualification.

(2) The perpetrator shall be punished by imprisonment for two to eight years if they commit the act mentioned in paragraph 1:

a) with the intent to obtain a significant benefit for themselves or another, or

b) as a public official.

(3) The perpetrator shall be punished by imprisonment for three to ten years if they commit the act mentioned in paragraph 1:

a) with the intent to obtain a large-scale benefit for themselves or another, or

b) as a public official with the intent to obtain a significant benefit for themselves or another. 

Subjective aspect - intent

Collusion in public procurement and public competition is an intentional criminal offence. A criminal offence is committed intentionally if the perpetrator wanted to violate or endanger a legally protected interest in the manner specified by the Criminal Code (direct intent), or if the perpetrator knew that his actions could result in such a violation or endangerment and accepted the possibility of it occurring (indirect intent).

If the act can be deemed as mere negligence rather than intent, it does not constitute the described criminal offence.

Defense

There are various defense strategies available. Given the elements of this criminal offence, the following questions may be relevant:

• Was it a public procurement or public competition?
  
• Did the actions aim to disrupt the proper course of the public procurement or public competition?
  
• How did the communication proceed?
  
• How do similar proceedings and communications typically occur in comparable cases?
• Did the actions aim to damage the property interests of the contracting authority or another affected person?
  
• Was the perpetrator's intent directed towards the decisive facts?