The Supreme Court Established a Lowered Standard of Proof for Bid-Rigging Collusion
The Supreme Court reviewed a case involving an alleged collusion between two companies in public procurement and reversed the judicial acts of three lower courts that had declined to uphold the position of the Federal Antimonopoly Service (FAS). The antimonopoly authority established that the companies submitted bids from the same IP address, were located at the same address, shared employees and counterparties, and when no other bidders participated, reduced the price by no more than 0.5 to 1%. When third-party competitors were present, both companies bid significantly more aggressively. The lower courts found that these circumstances alone did not confirm the existence of an anti-competitive agreement.
The Supreme Court disagreed with this approach and articulated a number of fundamental conclusions. To establish bid-rigging collusion, a body of circumstantial evidence indicating the pursuit of a unified pricing strategy is sufficient, even in the absence of direct written agreements. Courts are required to examine not merely the formal fact of competition between participants but also the behavioral strategy aimed at securing a win for a particular bidder. A company’s participation in tenders outside its core line of business, while simultaneously creating an appearance of competitive bidding, constitutes a significant indicator of coordinated conduct. Where a combination of such indicators is present, the burden of proving reasonable economic justification for such behavior shifts to the participants themselves.
The Supreme Court’s position carries significant implications for business. In 2025, FAS initiated 358 cases involving anti-competitive agreements, of which 121 concerned bid-rigging cartels, representing a 34% increase over 2024. Cartel agreements that cause substantial damage may also give rise to criminal liability under Article 178 of the Russian Criminal Code. We recommend that procurement participants take the new standard of proof into account and ensure proper documentation of the economic rationale for participation in each procedure.
