The content of a pre-tender agreement will ultimately reflect the needs of the parties and the structure chosen by the consortium. On 12 December 2018, the Italian Competition Authority (ICA) stated that the agreement between Grifols and Kedrion to submit a joint bid for the manufacture of plasmatherapy basic products to a consortium of blood donations to a consortium of Italian regions led by Emilia-Romagna was not anti-competitive, but had improved the well-being of the Italian health system. Lear supported Grifols in the proceedings and his economic analyses were decisive in demonstrating that the agreement with Kedrion was not contrary to Article 101 TEUE. The project was very extensive and the timing of the tendering process was very tight. A pre-bid agreement was prepared and implemented by the members to ensure that everyone understood and agreed how the consortium would manage the tendering process in such a tight time frame. These included defining the terms of agreement on the guidelines of the proposed main contract, how negotiations with the contracting authority would be pre-selected, and how and when its own formal consortium agreements would be implemented. Tender negotiations. The tender agreement defines which of them conducts the negotiations and ensures that the other is informed of the negotiations and, if necessary, can participate. In this article, we examine the role of pre-bid agreements for consortia involved in competitive situations. Sub-contract terms.
Our tender agreement provides that one party is a subcontractor for the other if the offer is successful. Therefore, the tender agreement defines the main subcontracting conditions, so that an argument can be avoided at the time of the tender. A joint venture agreement can also be signed if the offer is successful. Case study: pre-emption agreement for a „project/subcontracting“ structure, however, other major antitrust authorities do not follow this very hard position with respect to joint tendering contracts. A brief overview of international practice shows that a „broadersaton“ or, in itself, common auction approach is not compatible with the position of mature jurisdictions around the world.