Joint Bidding Agreements

CONSIDERING that GSPC, GGR and ENPRO (Bidding Group) have expressed their interest in the joint submission of a tender for Block KG-OSN-2001/3 (Block 10) proposed by the GOI under the New Exploration Licensing Policy – Third Round (NELP-III) under the conditions set out in this Agreement. This Agreement (this Agreement) confirms and defines, inter alia, the terms of an agreement between the Parties with respect to the intended implementation of a Joint Offer (the „Joint Offer“, the key conditions of which will be set out in the common tender documentation) for all of the issued and to be allocated share capital of the target entity. In many sectors, joint tenders are a usual and legitimate business practice (e.g. .B on risk participation, etc.) and involve the integration of their activities or cooperation in some way with a view to submitting a more competitive tender. However, the analysis of this practice under EU anti-dominant rules has been controversial, with some competition authorities and courts arguing that they are considered one of the most appalling infringements, while others have expressed a more nuanced view of them. If the members of the joint tender agreement (consortium) are not competitors, such an agreement does not appear to raise competition concerns. However, if the members of the consortium are actual or potential competitors, a joint tender could be regarded as an agreement between undertakings which could prevent, restrict or distort competition. Indeed, some authorities have considered this type of agreement to fall directly into the category of offences „after being tried“. The Spanish competition authority has taken a similar approach in several cases, stressing that „the advantages and the need to create a consortium can only be considered valid (…) in cases where, due to a lack of capacity, it is not possible for undertakings to compete individually on these markets. Only in these cases were they able to make use of the need to create a UTE (a temporary grouping of companies). Therefore, the joint tendering agreement would not raise competition concerns only in cases where the undertakings would not be able to supply individually (due to their lack of capacity).

Nevertheless, other major antitrust authorities do not follow this very tough stance vis-à-vis joint bidder agreements. .