In Competition… Competition & Public Procurement Law: September 2026 Update
October 2026Welcome to the fourteenth edition of In Competition.
September moved the centre of gravity from the authority to the bidder. The Commission proposed a single procurement Regulation built around a European preference that would let buyers restrict participation by origin. The CMA asked Parliament for access to losing bids and then fined named individuals for hiding a phone during a dawn raid. The CCPC searched solar businesses for bid rigging. The General Court upheld a merger prohibition on a share gain of a few tenths of a percentage point. Only Apasen v Tower Hamlets points the other way, and it judges the authority on the accuracy of a single notice. Where a bidder comes from, what its bids reveal and how its staff behave under inspection were each a regulatory lever in one month.
Public procurement
Commission proposes a single EU Public Procurement Act with a European preference (9 September 2026)
The Commission adopted COM(2026) 590 final, a Regulation on public contracts and concessions that would repeal Directives 2014/23, 2014/24 and 2014/25 and apply directly in every Member State. It cuts the menu of procedures, requires quality criteria to carry at least 30 per cent of total points, rising to 50 per cent where the subject matter is labour-intensive (Article 98(4)) and creates an EU procurement marketplace. The European preference toolbox would let a buyer restrict participation to operators from the Union or from countries covered by the EU’s international procurement commitments, impose origin requirements, or give Union bids a scoring advantage; the Commission could make preference mandatory by delegated act. Adoption is not expected before late 2027.
Why does this matter?
For United Kingdom suppliers the critical word is covered. The UK is a GPA party in its own right and the Trade and Cooperation Agreement carries reciprocal procurement commitments, so UK operators sit inside the class the preference is not designed to exclude. The argument that follows is about contracts outside treaty cover and about how origin is measured in integrated supply chains. In Ireland a Regulation displaces the transposing statutory instruments and the national choices in them. Anyone bidding on both sides of the Irish Sea should map which contracts rest on treaty access, and treat the Council negotiation as the window in which origin is defined.
Sources: COM(2026) 590 final; IP/26/1817 and QANDA/26/1819, 9 September 2026.
Apasen Ltd v London Borough of Tower Hamlets [2026] EWHC 2239 (TCC): an inaccurate contract award notice may expose a completed contract to set aside (28 August 2026)
Tower Hamlets abandoned a domiciliary care procurement and in March 2025 made interim direct awards to incumbents on urgency grounds. The transparency notice set out the justification; the contract award notice published the same day did not. The borough later excluded Apasen from the interim awards, and Apasen sought to set aside the contracts with the others. A strike-out application on the section 105 conditions failed: the court held it arguable that the justification had to appear in the award notice itself, and that what makes an award notice inaccurate has not yet been decided.
Why does this matter?
This is the first judgment to engage seriously with post-award set aside under the Act. Under the 2015 Regulations the protective document was the transparency notice; under the Act the contract award notice is the gateway, and an authority that justifies a direct award elsewhere may find the contract itself at risk. For authorities making urgent interim awards in care, housing and highways, the justification goes in the award notice, in terms, every time. For excluded suppliers, a completed contract to a competitor is not necessarily beyond reach. Strike-out is a low bar, but this is the signpost authorities will be judged against while the law is made.
Source: [2026] EWHC 2239 (TCC), 28 August 2026, National Archives Find Case Law.
Competition enforcement and merger control
CMA asks Parliament for bid-level data and a bid-rigging mandate in the next National Procurement Policy Statement (8 September 2026)
The CMA presented two papers to Parliament. Public procurement in the national interest recommends stronger system leadership, better data infrastructure and a proportionality review of requirements that favour incumbents, such as prequalification built on past delivery. Rigged bids, real costs cites seven cases and more than £129 million in fines since 2014, more than half in public procurement, and asks government to make bid-rigging prevention an explicit priority in the new National Procurement Policy Statement, enable cross-government access to procurement data and mandate machine-readable bid-level data for machine-learning screening of the kind used in Spain and Korea. The capability depends on losing bids, not just awards.
Why does this matter?
A priority written into the Statement becomes a duty on every contracting authority. The data proposal reaches further: losing bids are held by individual authorities, rarely structured and almost never shared. Pooled and screened, they change the risk profile for any supplier whose pricing across tenders looks anomalous against its competitors’, whether or not anything improper occurred. The question for construction and engineering groups is whether their own bid data would survive that screening, and whether anyone has looked at it that way. We would be glad to discuss what such a review involves.
Source: GOV.UK, Procurement in the national interest, 8 September 2026.
First civil penalties on individuals for concealing evidence during a dawn raid (24 September 2026)
The CMA fined M&J Group (Construction & Roofing) Ltd £25,000 and two staff £20,000 and £5,000 for removing a phone and documents during an inspection under a Competition Appeal Tribunal warrant, in the investigation into twelve construction companies suspected of bid rigging which we reported in June. At the time the maximum fixed penalty was £30,000; a business now faces up to 1 per cent of turnover. These are the first civil penalties on individuals for conduct during an investigation. The substantive investigation continues and no assumption should be made as to whether the law has been broken.
Why does this matter?
The sums are small and the message is not. An employee who hides a phone during a raid is personally liable, and the CMA has shown it will name them. Dawn raid training can no longer stop at the legal team: the person at the door, the person holding the site phone and the person asked where the files are kept each now carry an enforceable duty. For D&O insurers, a civil penalty on an individual for procedural non-compliance, unconnected to any infringement finding, sits awkwardly between the covered and the excluded.
Source: CMA press release, 24 September 2026.
CCPC searches solar panel businesses on suspicion of bid rigging (25 September 2026)
The CCPC announced searches of solar panel businesses in an investigation into suspected bid rigging, in the month its budget was confirmed at €30 million with staff doubling and months after finalising rules for an administrative sanctions regime carrying fines of up to €10 million or 10 per cent of turnover.
Why does this matter?
Bid rigging is an express offence in Ireland and individuals are convicted by jury: five were in the Central Criminal Court in December 2025 over school bus tenders. The two islands now run parallel programmes with different machinery, Britain fining individuals civilly for obstruction while the substantive case proceeds administratively, Ireland keeping the criminal route open. Solar is a sector of high volumes of similar public and semi-state tenders, the structure both regulators flag as elevated risk. According to RTE, this investigation does include some tenders awarded by public bodies. Installers and the main contractors who use them should treat this as the start of a sector programme, and groups tendering on both islands are the most exposed.
Shortly after the CCPC’s Press Release, on 5 October, An Post announced it is establishing a Qualification System for the provision of the Supply and Installation of Solar Panels Nationwide, underscoring the relevance of solar panels to the public sector.
Source: CCPC announcement, 25 September 2026.
General Court upholds the Booking/eTraveli prohibition on an entrenchment theory of harm (9 September 2026)
In Case T-1139/23 the General Court dismissed in its entirety Booking’s challenge to the 2023 prohibition of its acquisition of eTraveli, a flight online travel agency. The theory was that a flight booking channel would entrench Booking’s dominance in hotel booking by giving it a route to cross-sell. The Court accepted the share increment might be a few tenths of a percentage point, criticised parts of the Commission’s quantitative work, and upheld the result, confirming that the Non-Horizontal Merger Guidelines do not confine the Commission’s theories of harm. The draft revised Merger Guidelines already cite the case. An appeal remains open.
Why does this matter?
The principle is not confined to platforms. A dominant firm acquiring an adjacent business that is small in share but placed between it and its customers can be prohibited without a conventional foreclosure analysis. For infrastructure and engineering groups the read-across is to design houses, software platforms and specialist subcontractors on that path. The question before signing is not how much share the target adds but what it does to the position of everyone the acquirer competes with.
Source: General Court judgment and press release, Case T-1139/23, 9 September 2026.
Saipem and Subsea7: Phase II deadline suspended since 25 August (update)
We reported the Phase II opening in July. The Commission’s case register for M.12236 now records a 14 working day extension under Article 10(3) on 29 July 2026 and the suspension of the deadline under Article 11(3) from 25 August 2026, following a formal information request to the parties. As at the date of this update no resumption is recorded. The ACCC has extended its own timetable, and completion in 2026 is now widely regarded as unlikely.
Why does this matter?
An Article 11(3) decision is the Commission’s formal tool when a request for information has not been satisfied, and its use six weeks into Phase II is a signal about the state of the file. The practical effect is a delay of uncertain length layered onto a remedies negotiation that has not publicly begun. Customers who want to influence the remedy need to have engaged with the case team before the Statement of Objections, not after.
Sector notes
Construction and engineering
M&J makes raid conduct personal for site and office staff; the CMA’s data paper would reach every public sector contractor; the EU proposal would make the origin of inputs a scored and potentially qualifying factor. The CMA’s call for a proportionality review of past-delivery prequalification is the one item cutting in the sector’s favour.
Insurance
M&J creates personal civil liability for inspection conduct that most D&O wordings were not drafted for. Apasen means a contract awarded under an inaccurate notice may be set aside, a larger exposure than damages to a disappointed bidder.
Ireland
The Public Procurement Act would be directly applicable Irish law, displacing the transposing statutory instruments. Ireland holds the Council Presidency for the first three months of the negotiation.
Concluding thoughts
Three themes. Origin is becoming a procurement criterion, and its definition for integrated supply chains is now the most important open question in European procurement law. Bid data is becoming an enforcement asset, with the CMA asking for losing bids to be pooled and screened and holding named individuals to account for inspection conduct. The M&J affair highlights the need for a thorough understanding of obligations and risks during a dawn raid (and we expect more of these following the CMAs recent statements). Don’t begin investigation preparation on the day of the raid! And the courts have moved the test away from the headline number: a few tenths of a percentage point sustained a prohibition in Luxembourg, and a missing sentence in a contract award notice kept a set-aside claim alive in London. What mattered in both was the effect on everyone else, and the document actually published.
If you would like to discuss any of the issues raised in this update, please contact Paul Henty and Charlie Bayliss.
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