Cartels and Bid Rigging: Detection, Evidence and Liability in Belarus

1) What evidence do antitrust authorities use to prove a cartel if there is no written agreement?

The Ministry of Antimonopoly Regulation and Trade (MART) obtained by other authorities in the course of related proceedings, for example, in criminal cases, as well as independently request documents, analyse information available on the Internet and from other sources.

The following may constitute evidence:

• explanations of representatives of companies subject to an antimonopoly investigation  has been initiated;
• records of surveillance measures, such as recordings of meetings, telephone conversations, or reviews of emails and other electronic communications;
• records of documentary evidence, including handwritten notes or notebooks recording the allocation of customers or counterparties, financial thresholds, market or territorial allocation arrangements, and similar matters;
• electronic communications, including emails and instant messaging correspondence;
• other means of evidence, for example, analysis of participation in procurement only in a certain territory.

2) How do competition authorities detect bid rigging in public and private tenders?

Where a violation is established through monitoring, desk audits, and when considering complaints. As a result of detecting a violation, an order may be issued, and the official may be held administratively liable.

For example, in 2025, 680 complaints were filed with MART regarding the actions (inaction) and/or decisions of the contracting authority (organizer), the commission and/or its members, the commodity exchange, and the electronic trading platform operator during public procurement.

Based on the results of the complaints analysis, 70 desk audits of public procurement procedures were conducted: violations were identified in 27 cases.

3) Which types of information exchange between competitors may constitute an antitrust violation?

Competition law does not provide an exhaustive list of information, the exchange of which between competitors would automatically constitute a breach of law. However, the exchange of certain types of information may give rise to significant competition law risks, including:

• information relating to the company’s and its competitors’ production, sales or supply volumes;
• information concerning the geographic scope of business activities, including plans to enter new markets, expand, reduce or cease operations in specific territories;
• information relating to planned commercial strategies, including pricing policies, marketing and advertising activities, as well as potential mergers and acquisitions;
• other trade secrets that could enable competitors to anticipate or coordinate their market conduct.

Competition law risks primarily arise where the exchange of such information leads, or may lead, to any of the following outcomes:

• the fixing, maintaining, increasing or reducing of prices (tariffs), discounts, mark-ups or other terms of sale for goods, works or services;
• the allocation of markets by territory, product categories, sales volumes, types of sellers or customers, pricing factors or other criteria;
• coordinated decisions not to enter into agreements with certain sellers, customers or other counterparties, or the adoption of common criteria for refusing to deal with particular parties;
• coordinated reductions, restrictions or cessation of the production, sale or supply of goods.

4) What types of interactions with competitors are permissible under antitrust laws, and where is the line drawn between legitimate cooperation and unlawful coordination of competitive conduct?

Interactions between competitors are not prohibited as such under Belarusian competition law. In Belarus, their consequences or the actual or potential effects of such interactions are assessed:

• establishment, maintenance, increase, or decrease of prices (tariffs);
• division of the goods market by territorial principle, types, volumes of transactions, types, volumes, assortment of goods and their prices (tariffs), range of sellers or consumers;
• reduction or cessation of the manufacture (production) of goods;
• refusal to conclude contracts with certain sellers or consumers, if such refusal is not provided for by legislative acts.

The above prohibitions do not apply in the following circumstances:

• where the competitors belong to the same corporate group (i.e. they are under the control of the same undertaking or are under each other's control). This exemption does not apply to agreements between participants in a procurement procedure;
• where the competitors have entered into agreements relating to the transfer or licensing of intellectual property rights.

5) What are the most common red flags indicating possible bid rigging?

MART establishes collusion between the tender organizer and a participant based on the following signs:

• the presence in the technical specifications for procurement of unique characteristics of a specific manufacturer's goods that have no analogues;
• unreasonably short deadlines (only a participant that had prior knowledge of the procurement can fulfill obligations within the specified period);
• inclusion in the procurement documentation of the criterion "completed works criterion", the values of which are selected based on the volumes of supplies, services, and works performed exclusively for one specific customer or its structural divisions.

The following signs indicate collusion between participants:

• withdrawal of bids by alternative participants, ensuring victory for the pre-selected participant participant; 
• submission of a non-competitive bid (excessive price, unacceptable terms).

6) What liability may a company and its executives face for participation in a cartel or bid-rigging arrangement?

If MART identifies a breach of competition law, it may issue a warning or require the company to remedy the breach by issuing a mandatory order. If the breach is not remedied within the specified timeframe, both the company and the responsible individuals may be subject to administrative liability and fined between 20 and 100 base units (approximately 313-1600 USD).

In the area of public procurement, MART may also issue a mandatory order, declare the procurement procedure invalid, and impose administrative liability on both the company and the responsible individuals. Administrative offences may include, for example, the use of an inappropriate procurement procedure, the improper evaluation of bids, or the cancellation of a procurement procedure or a particular lot without valid grounds. The maximum administrative fine is 100 base units (approximately 1600 USD). 

7) Could participation in industry associations, working groups, or market information exchange forums give rise to antitrust risks?

Risks may arise from any interaction with competitors or counterparties where such interaction results, or is capable of resulting, in a restriction of competition or other adverse effects on the relevant market. At the same time, discussions concerning general industry issues, participation in the development of proposals for legislative reform, engagement with public authorities, and activities carried out within industry associations or trade organisations established by, or operating with the participation of, public authorities are generally considered to present a low level of competition law risk, provided that such interaction is not used to coordinate the competitive conduct of market participants.  

8) What should a company do if it discovers potential cartel conduct during an internal audit or investigation?

If potential signs of cartel conduct are identified during an internal audit, the following steps may be considered:

1. Review and, where necessary, adjust the company’s market strategy, including pricing practices and participation in public procurement procedures from which the company was previously excluded.
2. Develop and implement an internal policy document, such as a Code of Conduct, Tender Participation Policy or similar document, setting out a clear prohibition on such conduct going forward and ensuring that all relevant employees are familiar with its requirements.
3. Review and amend any existing agreements with competitors to ensure that they do not contain provisions or arrangements that could be interpreted as evidence of cartel conduct.
4. Establish clear internal pricing principles and procedures to ensure that pricing decisions are made independently and are not influenced by competitors’ conduct in the relevant market.

9) Are there any leniency or cooperation programs that allow companies to reduce or avoid penalties?

Yes, at the EAEU level, a leniency program is in effect (Decision of the Council of the Eurasian Economic Commission dated December 12, 2023, No. 151 "On Approval of the Procedure for Exemption from Liability upon Voluntary Declaration by an Economic Entity (Market Entity) of the Conclusion of an Agreement Inadmissible in Accordance with Paragraphs 3–5 of Article 76 of the Treaty on the Eurasian Economic Union dated May 29, 2014, as well as Participation Therein").

A company that is the first to voluntarily report to the Eurasian Economic Commission the conclusion of a cartel or other prohibited agreement is fully exempt from sanctions, provided that all evidence is submitted, participation in the violation is terminated, and the Commission has no information about it at the time of the application.

The antimonopoly authority uses two preventive instruments: a caution (issued to an official to prevent an intended violation and does not entail administrative liability), and a warning, which is issued to an economic entity during the investigation stage for the voluntary elimination of existing indications of a violation. If the entity fulfills all the requirements of the warning, the case against it is terminated, and no liability is incurred; however, if it fails to comply with the warning, the antimonopoly investigation continues, and upon its conclusion, if a violation is established, a binding order is issued and administrative liability is imposed. 

10) What elements should an effective antitrust compliance program include to minimize cartel risks?

An effective antitrust compliance program may include the following measures:

1. Establishing clear procedures for preparing tender documentation, including rules for defining the scope of procurement, structuring lots, determining the frequency of procurement procedures, and publishing procurement information.
2. Applying the “four-eyes principle”, i.e. introducing a requirement for independent review and approval when preparing lots and reviewing submitted bids.
3. Carrying out quarterly monitoring of competitors’ prices, the company’s own pricing, and overall market price trends.
4. Conducting quarterly reviews of bids submitted and received in connection with tender participation, including analysing cases where the same bidder is repeatedly selected as the winner or where business activities are limited to a single region.
5. Establishing and documenting objective criteria and legitimate grounds for refusing to enter into agreements with counterparties.
6. Providing annual competition law training for employees, taking into account MART’s enforcement practice, followed by assessment of employees’ knowledge.

Authors: Anton Mazol, Polina Sachava, Veranika Klachko