Agenda and Materials

 

2017 ICN Cartel Workshop

Fairmont Château Laurier

Ottawa, Ontario, Canada

October 4, 5 and 6, 2017

 

 

Combatting Cartels in Public Procurement

Cartels can significantly reduce governments’ ability to ensure best value for procurement spending, and this failure to use tax dollars to their maximum efficiency negatively impacts national economies.  Deterring and detecting cartels in public investment is an important way to ensure economic growth, job creation and broad-based prosperity.

 

Tuesday October 3rd

TBD:                           Evening Welcome Reception
                                   
[Location TBD] 

Day 1 – Wednesday October 4th – “Detection”

9:00-10:00am:            Registration

10:00-10:30am:          Opening Remarks

10:30-10:45am:          Break

10:45-12:15pm:          Plenary 1: Experiences with bid-rigging in public and private procurement
Panelists will be encouraged to take a broad approach to this topic, to foreshadow the issues to be discussed in more detail as the day goes on.  Possible topics could include examples of how agencies have detected this kind of case. Including issues raised/lessons learned from particular examples.
[Chateau Laurier, Room TBD]
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12:15-1:15pm:            Lunch

1:15-2:45pm:              Simultaneous Mini Plenary Sessions:

Mini Plenary #1: Raising awareness of bid-rigging with (and generating leads from) public procurement agencies/authorities
Topics include how to encourage public procurers to collect information that will help reveal if bid rigging has taken place, and how to build relationships between competition agencies and public procurers that will encourage/enable the reporting of suspected bid-rigging.
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Mini Plenary #2: Screening public procurement data to detect bid-rigging
Agencies who have undertaken such a project could describe what they have done and the results they have seen/lessons they have learned. 
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Mini Plenary #3: Other methods of bid-rigging detection
Panelists provide their perspectives on detecting bid-rigging (with a focus on public procurement) using: leniency programs, media monitoring, whistleblowers, informants, tips from the public, and/or compliance training for businesses.  Panelists will be encouraged to explore any other methods of detection other than those that are already the subject of another session. 
[Chateau Laurier, Room TBD]
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2:45-3:00pm:              Break

3:00-4:30pm:              Simultaneous Breakout Sessions:

 

Breakout Session #1: Organizing your agency to maximize cartel detection (possible French language session)
Topics to discuss include building institutional relationships with other antitrust authorities and law enforcement bodies.  Sub-topics could include formalizing these relationships through MOUs, etc., protocols surrounding the exchange of information with these partners, as well as internal structures such as centralized information or intelligence gathering units.   
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Breakout Session #2: High tech tools for cartel detection
Is your agency using new tools to gather evidence or information?  What are they?  What is working well?  What isn’t?
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Breakout Session #3: High tech tools that can enable/facilitate cartel commission
Are companies using tools that, inadvertently or otherwise, enable or facilitate cartel behaviour?  What are these tools?  What risks are companies assuming by using them?  Are companies receiving advice from their competition counsel on their responsible use?  Are competition agencies providing any guidance?
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Breakout Session #4: Handling informants (AGENCY ONLY)
Participants discuss what kind of protections or benefits their agencies afford  confidential informants, the risks of these kids of programs (for both agencies and individuals), and informant reward programs.
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Breakout Session #5: Presentation on current ICN CWG projects/products
Interim report on the SG1 Report on Leniency and information/updates on other CWG work. 
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Day 2: Thursday October 5th – “Investigation”

8:45-9:15am:              Minister Sohi Remarks

9:15-10:30am:            Plenary #2: The outer limits: the parameters of a bid-rigging investigation
How can a bid-rigging in public procurement investigation overlap with other jurisdictions, other areas of law, and other law enforcement agencies?  How does that overlap influence and shape the investigation?  Panelists will be encouraged to take a broad approach to this topic, to foreshadow the issues to be discussed in more detail as the day goes on. 
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10:30-10:45am:          Break

10:45-12:15pm:          Simultaneous Mini Plenary Sessions:                                   

Mini Plenary #4: Cooperation with other domestic law enforcement agencies
Panelists discuss their experiences, and the best practices they would recommend in light of those experiences.  This could include experiences related to receiving investigative assistance from other law enforcement agencies, and embedding competition law investigators in other law enforcement agencies (or vice versa).
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Mini Plenary #5: Cooperation with international antitrust partners

It is hoped that panelists will pay special attention to the issue of how this kind of international cooperation affects leniency programs, and particularly their appeal, success and future. 
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Mini Plenary #6: High tech tools for furthering a cartel investigation
Panelists discuss (and demonstrate!) the newest technologies they are using to further their investigations- particularly tools used to manage, summarize and present evidence. 
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12:15-1:15pm:            Lunch

1:15-2:45pm:              Simultaneous Breakout Sessions

Breakout Session #6: The role of traditional policing techniques in cartel investigations
Just as agencies are developing and using new technologies to develop their investigations, some are also making increased use of more traditional policing techniques.  Discussion topics include the use of techniques such as handwriting and fingerprint analysis, and wiretapping.  Discussion could also focus on how agencies are developing their knowledge and understanding of these techniques, i.e. by working with domestic law enforcement partners.
  
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Breakout Session #7: The use of indirect evidence in building a cartel case
How can indirect evidence be used in your jurisdiction?  Does your agency have examples of when it was used successfully/unsuccessfully that you could use to provide others with an illustration? 
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Breakout Session #8: Bid-rigging, price-fixing, or both?
How does your agency tackle “hybrid” cases, or cases with multiple theories of harm?  Does your agency have defined criteria that it uses to decide how it will proceed?  If so, what are they? What successful/unsuccessful cases of this kind have you had?  What have you learned from these experiences?     
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Breakout Session #9: Coordinating investigations involving multiple stakeholders
When dealing with multiple levels of government or prosecution, how are questions of jurisdiction resolved?  Who takes the lead?  What are the rules/parameters of cooperation that produce the best results?  Are there specific considerations in granting leniency in these types of investigations? 
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Breakout Session #10: The role of Inspectors General (possible French language session)
Discussion focus on what Inspectors General are, where their work overlaps with that of the competition authorities, and how their expertise can best be leveraged by competition authorities. 
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2:45-3:00pm:              Break

3:00-4:30pm:              Plenary #3: How to achieve deterrence through advocacy and cooperation with procurement authorities
Panelists discuss how best to work with procurement agencies to deter bid-rigging, including  a discussion of what fair/flawed bidding processes look like, and how competition law agencies can best influence tender design (particularly in the public sphere).  Sub topics could include the use of electronic trade/bidding platforms. 
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5:00pm:                      Tours of Centre Block of Parliament will run in 10 minute intervals

5:30-7:00pm:              Hors d’oeuvres and drinks will be served at Sir John A. Macdonald building

7:00pm:                      Dinner – served after the last tour group has arrived


Day 3: Friday, October 6th – “Deterrence and Prevention”

9:00-10:30am:            Simultaneous Mini Plenary Sessions:

 Mini Plenary #7: Compliance training (possible French language session – OR #8)

Panelists discuss their best new ideas for how to effectively deliver competition law compliance training.  Emphasis could be placed on the use of technology to facilitate this goal- i.e. the use of games/apps to deliver training. Panelists could also consider targeted compliance campaigns linked to successful case outcomes. 
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Mini Plenary #8: How to get the compliance message out to smaller businesses (possible French language session – OR #7)

Panelists discuss the techniques they use to get their anti-cartel/anti-bid-rigging message out to small businesses, with a particular emphasis on new techniques. 
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Mini Plenary #9: Sanctions

Panelists discuss topics ranging from the types of available sanction and their effectiveness to factors to be considered when sanctions are being determined (such as recidivism).  The use of debarment appears to be of particular interest to some, panelists could also consider the benefits and challenges of debarment as a sanction for cartel conduct, focusing on the public procurement context.  Panelists could also consider the calculation of fines. 
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10:30-10:45am:          Break

10:45-12:15pm:          Simultaneous Breakout Sessions

 

 Breakout Session #11: Library and Archives Canada trial visit

Subject to scheduling, Workshop participants can observe court proceedings in a trial alleging bid-rigging in the context of the provisions of IT services to a Canadian Government Agency: Library and Archives Canada.
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Breakout Session #12 (Alternate for Breakout #10): When civil servants go bad: what to do when a government procurement agency is involved in bid-rigging

Topics for discussion include how to deal with the government department/agency and can or should it be charged?  Or should education be the primary goal?  What about the individuals (civil servants, or even politicians) involved?  Can or should they be charged?  Under competition law, or under a statute related to their duties as civil servants/elected officials?
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Breakout Session #13: The treatment of individuals who engage in cartel conduct

Should individuals be pursued? And under what circumstances?  What is the most effective approach? Criminal sanctions? Director disqualification?
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Breakout Session #14: Structural risk

Are some types of government more at risk for bid-rigging of public procurement process?  Are some market sectors?  Are there steps competition law agencies can take to mitigate either of these kinds of risk? 
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Breakout Session #15: Private Enforcement

Participants discuss their respective agencies’ role with respect to private enforcement, particularly with respect to supporting procurement agencies/municipalities/taxpayers in recovering damages when there has been bid-rigging in the context of public procurement.  The calculation of damages, either in public procurement cases or competition class actions more generally, could also be considered, as could the confidentiality of leniency/plea documents from the associated agency case.   
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Breakout Session #16: Tactics in negotiating plea deal (AGENCY ONLY)

One possible sub-topic: how agencies address inability to pay arguments.  Is it a defence set out in statute, available under common law, or merely an agency policy?  What considerations/factors underlie your jurisdiction’s treatment of these kind of claims?
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12:15-12:45pm:         Closing Remarks