CADE finds companies guilty of cartel conduct in Infraero procurement

On 3 August 2022, the Administrative Council for Economic Defense (CADE) found five companies and six individuals guilty of cartel conduct in a government procurement organised by Infraero, the government agency responsible for airport management in Brazil. The Tribunal of CADE also imposed fines amounting to about BRL 4.7 million for the antitrust violation.

The investigation figured out the cartel was operating in procurements related to cafeterias in several airports. In total, officials investigated seven in-person reverse auctions (all carried out between May and November 2014).

The companies Alimentare, Ventana, Confraria André, Boa Viagem, and Delícias da Vovó are to pay fines that amount to more than BRL 3.8 million. Additionally, the fines imposed on the individuals amount to about BRL 965.3 thousand.

According to the investigation, the companies tried to stop Infraero's procurement auctions of cafeteria services in airports in several cities (Campo Grande in Mato Grosso do Sul, São Paulo in São Paulo (Congonhas Airport), Florianópolis in Santa Catarina, Maceió in Alagoas, Recife in Pernambuco, and São José dos Pinhais in Paraná).

In the tribunal session, President Alexandre Cordeiro, in his vote, agreed with Commissioner Gustavo Augusto, who suggested that the calculation of fines should consider the financial capabilities of the parties.

The president pointed out, however, that this new methodology is only to apply to similar cases that come to be heard by the Tribunal in the future and require a systematised calculation of the fine.

Furthermore, he added that the methodology developed is to be used only as a parameter and not as a fixed formula which would take away the flexibility that the Tribunal needs to adopt when reviewing each case.

According to Commissioner Gustavo Augusto, the tax rate should be 12 to 20% of the fine imposed on companies involved in cartels in government procurements or hard-core cartels. As for soft-core cartels and other collusion practices, the tax rate should be 1 to 12% of the fine imposed on the companies.

In addition to the fines, the cartelists are prohibited from participating in federal, state and local government procurements for five years (minus any time Infraero has already subjected the parties to a similar prohibition in the same case).

The Tribunal made the unanimous decision to determine the issuance of official letters with a copy of its decision to the Federal and State Prosecution Services in Campo Grande in Mato Grosso do Sul, São Paulo in São Paulo, Florianópolis in Santa Catarina, Maceió in Alagoas, Recife in Pernambuco, and São José dos Pinhais in Paraná. These letters are for knowledge, the proposal of eventual lawsuits for civil damages, and the adoption of the applicable criminal measures.

Moreover, the Tribunal also decided the case is to be disclosed to interested parties, including those affected by the anticompetitive practice, so they can exercise their right to demand compensation if they desire to do so and as the case may be. The wrongdoers are also to pay for the publication of the decision on half a page of the newspaper O Paraná for two consecutive days, within a two-week time limit.

Access Case no. 08700.007278/2015-17