黑洞社区

Last week, three former directors of office fit-out companies were disqualified from holding directorships or managing any UK company for between two and five years, after being found guilty of breaking competition law. One was a director of Bluu Solutions, owned by JLL Group, while two others were from Fourfront companies Cube Interior Solutions and Area Sq. In total four companies were fined more than 拢7m. This came hot on the heels of April鈥檚 ban on two company directors whose construction firm, CPM Group, had participated in a cartel over the supply of precast concrete drainage products 鈥� they were barred by a court from holding directorships or managing any company for up to seven-and-a-half years. 

The disqualifications were carried out at the behest of the Competition and Markets Authority (CMA), which investigated and exposed both cartels, and is still investigating other suspected participants in the concrete cartel 鈥� Stanton Bonna Concrete Ltd and FP McCann Ltd. 

The disqualifications are part of the latest activity by the revitalised competition regulator, which has launched a rash of cases against construction firms for cartel-type behaviour, covering everything from groundworks firms to rolled lead suppliers.

鈥淒irector disqualifications send a very strong message, reminding people that individuals can face imprisonment and fines for breaking competition law鈥�

Angelene Duke, Womble Bond Dickinson

It is a decade since the CMA鈥檚 predecessor, the Office of Fair Trading (OFT), fined 103 firms more than 拢130m in total for anti-competitive behaviour. The industry hoped the moment marked a watershed for cleaning up the industry. But with five cartel investigations and two merger studies ongoing into construction sector firms, Howard Cartlidge, the CMA鈥檚 senior director on cartels, said it now has more ongoing cartel investigations into construction than at any time since the mammoth OFT probe.

With the construction industry already under sharp scrutiny from government, clients, lenders and shareholders alike following the collapse of Carillion and Interserve, this is probably the last thing the sector needs. But is this recent burst of inquiries simply the result of a regulator aiming to make a point, or is it a sign that construction has already forgotten all the hard lessons it supposedly learned from the painful OFT saga?

鈥楴o campaign鈥�

By its nature, this is an area where hard data is difficult to come by, which means that assessing whether any real uptick in bid-rigging or more serious corruption such as bribery is happening is near impossible. However, for its part, the CMA claims it has not embarked on any campaign to target construction but is simply following evidence gained from its intelligence activities, whistleblowers and other suppliers. 

One director at a major specialist contractor said construction had actually become more corrupt in recent years: 鈥淯nfortunately the 鈥榖rown envelope鈥� culture is absolutely rife again.鈥�

While this is impossible to prove, the CMA鈥檚 Cartlidge says: 鈥淚n recent years a number of serious allegations have reached us of cartel activity in various parts of the construction sector and so we have taken action to investigate. We have not pursued any deliberate strategy of targeting construction companies.鈥� 

However, not everyone takes this assertion at face value. Angelene Duke, associate at law firm Womble Bond Dickinson, says it appears the CMA has 鈥減rioritised鈥� construction, albeit in response to poor practice in the sector. 鈥淭he CMA does not have a lot of resources, so for them to prioritise a sector and have so many open cases does show that they must believe there is a lot of anti-competitive practice happening. The CMA is probably trying to send a message to the sector here,鈥� she says. 

Whether this is deliberate targeting or not, Duke says the CMA鈥檚 actions are getting noticed. 鈥淐ertainly, director disqualifications send a very strong message, reminding people that individuals can face imprisonment and fines for breaking competition law.鈥�

Construction is the 鈥榤ost corrupt industry globally鈥�

And while the exact extent of corruption and bid rigging in construction is unknown, there are plenty of reasons why the CMA might want to send such a message. Leo Martin, managing director at corporate ethics consultant GoodCorporation, says studies, such as those carried out by ethics charity Transparency International, regularly rate construction as the most corrupt industry globally. Reasons for the high risk include the size and uniqueness of projects; the high level of subcontract relationships, with each one an opportunity, potentially, for corruption; a culture of secrecy; and the ability to conceal when work is inadequately carried out.

UK research commissioned by the CMA and published last autumn showed that staff in construction firms were more likely to see their business as at risk from breaching competition law 鈥� with almost half seeing at least a 鈥渕edium risk鈥� 鈥� than in any other UK industry surveyed. In addition, it found that knowledge of competition law was low, and declining further, and far fewer staff than in other sectors 鈥� only just over one-fifth 鈥� would report their own business to a regulator if they found it was engaged in a cartel.

This appears to confirm that little is likely to have changed since the findings of the most comprehensive UK study of corruption and bid-rigging, by the Chartered Institute of 黑洞社区 (CIOB), were published in 2013. This found that almost half of those working in construction felt that corruption of some kind was either 鈥渇airly鈥� or 鈥渆xtremely common鈥�, while almost 38% had direct experience of cartel activity in the sector 鈥� much of which was within the last two years. More than one-third reported being personally offered a bribe.

Prior to the CIOB study, there had been hope that significant strides in improving the culture 鈥� particularly around anti-competitive behaviour 鈥� had been made in response to the OFT investigation. GoodCorporation鈥檚 Martin says: 鈥淎fter the OFT we saw a renewed focus on drawing up codes of conduct, employing ethics and compliance officers. People saw very clear policies and programmes and training programmes rolled out.

鈥淕iven this, I was quite shocked to see the CIOB figures. Something is not right here,鈥� he says. Martin speculates that the financial pressures faced by contractors in the intervening years increased the risk of direct corruption.

鈥楨veryone was on the take鈥�

A particularly striking finding from the CIOB survey was the attitude of respondents to cover-pricing, a practice whereby contractors who do not have time or resources to bid on a project phone up a competitor to get a price that will intentionally lose them the bid but allow them to maintain a relationship with the client. The OFT says cover-pricing leads to clients paying higher prices because of a lack of genuine competition. Despite this being the principal focus of the OFT鈥檚 2009 investigation, the CIOB study found only two-thirds of respondents agreed that engaging in cover-pricing was corrupt.

This is not to say that practice in the industry has failed to move on from what was acceptable 40 or 50 years ago. Jim Martin, partner in quantity surveyor practice Martin Arnold, says the industry is thankfully vastly different from the one he joined. 鈥淚t鈥檚 amazing how little corruption goes on compared with the 1970s. Then everyone was on the take, from top to flippin鈥� bottom. People would have an allowance to buy the building control officer drinks.鈥�

Martin says investigations his firm carries out for housing associations following allegations of corruption usually find that nothing untoward has happened. Genuine corruption, he says 鈥渋s not rife, it鈥檚 marginal and it doesn鈥檛 have a huge impact on the functioning of the industry. Where we have seen it, it鈥檚 always been very low level and becomes painfully apparent to people pretty quickly.鈥�

Nevertheless, Martin is also very clear that this doesn鈥檛 mean anti-competitive practices that benefit a firm rather than a single corrupt individual have been wiped out. 鈥淚鈥檓 sure cartels happen. Where you have specialisms where there are a limited number of players, you can very easily see a cartel forming.鈥�

Disqualification

In particular, cover-pricing, a practice that was not clearly outlawed until the 2002 Enterprise Act, is, Jim Martin believes, still common. 鈥淚t has always gone on, and really it would be very, very difficult for the industry to operate as it does without it,鈥� he says. 鈥淚f you鈥檙e an estimator, you鈥檝e got to be able to target the jobs you want to win and manage the relationship on the jobs you don鈥檛. Contractors don鈥檛 see it as collusion but as co-operation, which avoids everyone wasting time.鈥�

The CMA, though, takes a very different view. A spokesperson said the organisation had been 鈥渟urprised and disappointed鈥� to find the practice still going on in recent investigations. 

鈥淲here we find that cover-pricing has taken place,鈥� the spokesperson said, 鈥渢he companies responsible can expect to receive fines and individual directors implementing cover-pricing will face director disqualification proceedings.鈥�

So, have contractors lost focus on this in the time since the OFT? In some senses, it is hard to argue that corruption has been off the agenda, given an ongoing procession of high-profile court cases going back as far as bridge-builder Mabey & Johnson, which in 2009 admitted paying bribes to politicians in six countries to win work. 

Since then, about a dozen cases have gone to court, including that of consultant Cyril Sweett, convicted in 2016 under the 2010 Bribery Act for work on an Abu Dhabi hotel, which resulted in a 拢2.25m fine and the jailing of a former executive, and that of subcontractor Alandale Rail, where directors were jailed in 2017 after paying bribes to win a Thameslink contract. Indeed, a subsidiary of Mabey 鈥� Mabey Hire Ltd 鈥� alongside a separate fim called MGF (Trench Construction Systems) Ltd, is at the centre of one of the CMA鈥檚 current investigations. 

However, it is fair to say that the kind of competition-law breaches investigated by the OFT have not, until recently, been centre stage. Duke, at law firm Womble Bond Dickinson, says: 鈥淚t鈥檚 hard to say definitively but there are always trends in law, and recently everyone has been thinking about data protection as their big risk. Companies could have lost focus on this.鈥� Certainly, the CMA said it was particularly disappointed that this kind of cartel activity has continued, 鈥済iven the widespread publicity given to the cases in 2009 and our efforts since then to publicise the importance of competition law compliance鈥�.

Survival

It could also, of course, be a sign that the fallout from the OFT investigation never reached that far below the corporate top tier of blue-chip contractors. GoodCorporation鈥檚 Martin says: 鈥淭here鈥檚 a very long and complex tail to the construction industry. Some sub-markets can have very cosy positions. These smaller firms won鈥檛 be ones to have compliance officers enforcing policies around behaviour.

鈥淢y guess is that since [the CIOB鈥檚 study was published in] 2013, the industry has really struggled to improve the situation regarding corruption, given a long period of austerity, which has made winning work even more crucial. It鈥檚 been about survival, which increases the risk of direct corruption to get work. I suspect things have got worse.鈥�

Rudi Klein, chief executive of subcontractor trade body Specialist Engineering Contractors鈥� Group, says: 鈥淭here鈥檚 bad practice in terms of payment right across the whole process, and one response from subcontractors has been to act illegally to try and protect themselves. It鈥檚 time to stop not only those acting illegally but the bad practice that leads to the illegality.鈥�

Simon Tolson, senior partner in law firm Fenwick Elliott, says the low-margin business model makes this all the more likely. 鈥淭he industry doesn鈥檛 seem to be able to shake itself out of this low-margin business model. And when things are very difficult, that鈥檚 when more nefarious practice comes in.鈥�

David Barnes, public affairs manager at the CIOB, says this link between low margins and corruption will not go unnoticed by government, meaning the surge of recent competition cases are likely to reinforce the view of the Department for Business, Energy and Industrial Strategy (BEIS) that the construction sector is in need of significant reform. 鈥淭he issue with the construction sector seems to be  that it operates reactively when it comes to huge ethical issues such as crime, corruption and modern slavery.鈥�

He adds: 鈥淔ollowing Carillion, Grenfell and everything else, the industry is really under the microscope. The number one priority of BEIS is to change the construction industry鈥檚 business model.鈥�

For construction, the prospect of further CMA action 鈥� with the latest probe launched just in March 鈥� will not be welcome. But cleaning up its act seems likely to be just one of a number of necessary measures to reform the industry as a whole.