The crime of disturbing the freedom of auctions: implications and defense

Receiving a notice of investigation or being involved in an investigation for the crime of bid rigging represents a moment of extreme criticality for any entrepreneur, administrator, or public official. This type of accusation not only threatens personal freedom but risks irreversibly compromising corporate reputation and the ability to participate in future tenders. As a criminal lawyer in Milan, I deeply understand the complex dynamics that characterize the public procurement sector and the anxiety that arises from seeing one's professional integrity called into question. It is essential to act with promptness and technical precision from the very first stages of the proceedings.

The regulatory framework of Article 353 of the Penal Code

The crime of disturbing the freedom of auctions, commonly known as bid rigging, is governed by Article 353 of the Penal Code. The provision punishes anyone who, by violence, threat, gifts, promises, collusion, or other fraudulent means, prevents or disturbs the auction in public tenders or private negotiations on behalf of public administrations, or deters bidders. The protected legal interest is not only freedom of competition but, above all, the proper functioning of Public Administration, which must be able to select the best contractor under the most advantageous conditions. Jurisprudence has progressively expanded the concept of fraudulent means, including any artifice, deception, or falsehood capable of altering the regular functioning of the tender, even without immediate economic damage to the public entity.

The approach of Studio Legale Bianucci in criminal defense

Avv. Marco Bianucci, a lawyer specializing in corporate criminal law and crimes against Public Administration in Milan, handles bid rigging cases with a meticulous and analytical defensive strategy. The defense is not limited to contesting the charges in court but begins with an in-depth examination of all tender documentation, including notices, specifications, and award minutes. The objective is to identify any procedural defects or misinterpretations of conduct by the investigators. Often, what is interpreted as collusion is actually the result of legitimate business strategies or poorly understood temporary business associations (ATI). Avv. Marco Bianucci's expertise allows for a clear distinction between criminally relevant conduct and administrative irregularities, building a solid defense line aimed at demonstrating the absence of intent or the non-existence of the act.

Frequently Asked Questions

What are the risks in case of conviction for bid rigging?

The penalty provided by art. 353 of the Penal Code is imprisonment from six months to five years and a fine. However, if the perpetrator is a person appointed by law or authority to conduct auctions or tenders, the imprisonment ranges from one to five years and the fine is increased. In addition to criminal sanctions, accessory consequences can be devastating, including disqualification from public office and the inability to contract with Public Administration.

Does the crime occur even if the tender has not yet been awarded?

Yes, bid rigging is a crime of danger. This means that for its consummation, it is not necessary for the tender to have been actually altered or for the administration to have suffered concrete economic damage. It is sufficient that the fraudulent conduct has endangered the regularity of the procedure or free competition among participants.

What is meant by fraudulent means?

The definition is very broad. It does not only refer to secret agreements between participants (the so-called cartel) but to any artifice or trick capable of deceiving Public Administration or other competitors. A common example can be the submission of coordinated bids by apparently distinct companies but attributable to the same decision-making center, in order to steer the outcome of the tender.

Can the company be held liable?

Absolutely yes. Bid rigging falls under the predicate offenses for the administrative liability of entities pursuant to Legislative Decree 231/2001. This means that, in addition to the natural person who committed the crime, the company can also suffer heavy pecuniary and disqualifying sanctions, such as exclusion from funding or revocation of authorizations, if it fails to demonstrate that it has adopted organizational models suitable for preventing the crime.

Request expert legal advice

If your company is involved in bid rigging proceedings or you fear that your conduct may be subject to investigation, it is essential not to waste time. Avv. Marco Bianucci is available to analyze your position and define the best defense strategy. Contact the firm at its Milan office at Via Alberto da Giussano, 26, for a confidential and professional assessment of your case.