Given that this will be the first time they have seen the evidence, they will be assessing whether the evidence really stacks up and meets the necessary standard of proof Đ is it “strong and compelling”? -or whether they should fight the allegations.
Those companies which accepted the OFT’s fast-track penalty reduction offer might well decide to take their chances and withdraw their acceptance of the offer.
The OFT will not reach a final decision and announce penalties until early 2009.
In the meantime, companies will be dealing with inquiries from clients. It is essential that public sector procurers understand that these are only allegations.
It would be inappropriate and may be unlawful to penalise these firms by removing them from tender lists at this stage.
Companies should also ensure they are in compliance with competition law for the future and should implement a competition compliance programme.
The OFT has made clear that it will bring criminal prosecutions and seek director disqualification orders if they detect any future infringements.
Alan Davis is a competition partner with law firm Pinsent Masons LLP