Review of agreements and clauses that restrict competition

The clauses where the risk concentrates

Colombian competition law, built on Law 155 of 1959, Decree 2153 of 1992 and Law 1340 of 2009, does not prohibit hard bargaining or protecting a distribution network. It prohibits certain effects. The review consists in separating the clause that merely protects a legitimate investment from the one that hands a competitor or a distributor a decision the market should be making.

• Resale price. The difference between recommending a price, imposing it, and penalising the distributor who departs from it.
• Exclusivity. Scope, duration, territory and foreclosure effect on other suppliers.
• Non-compete. During the contract and after termination, with defensible limits on subject matter, time and geography.
• Tying and minimum volumes. When they are a commercial condition and when they operate as a restriction.
• Most-favoured-customer and price-matching clauses. Their effect on price dynamics in the market.
• Channel restrictions. Bans on online sales, on cross-selling between distributors or on serving particular customers.

What gets said to the competitor

The second front is horizontal contact. Here the risk sits not in a contract but in emails, chats, minutes and slide decks. We review how the company deals with those who compete against it and set concrete rules for the people who attend on its behalf.

• Information exchange in trade associations: what level of aggregation and what age of data is reasonable, and which topics require leaving the room.
• Market studies, surveys and sector benchmarks commissioned from third parties.
• Contacts arising from shared customers or suppliers, from trade fairs and from industry events.
• Hiring staff from a competitor and handling the information they bring with them.
• Joint purchasing, capacity swap and toll manufacturing arrangements between competitors.

Tenders and selection processes

Bidding as a consortium or temporary joint venture is legitimate and sometimes unavoidable. What is sanctioned is using that structure, or subcontracting, to divide up a process or to settle in advance who wins. Because conduct in public tenders tends to be examined with particular severity, we put the rules in writing before bidding season starts.

• Criteria for deciding whether to bid alone, in consortium or as a subcontractor, and how that decision is documented.
• Rules on contact with other bidders while the offer is being structured.
• Handling of bid information inside the company and with partners.
• Review of historic participation patterns that could be read as market sharing.

How we run the review

1. Inventory. We identify the contracts in force, the channels and the points of contact with competitors that matter for the business.
2. Clause-by-clause reading. We classify each provision by the risk it creates and by how sustainable its commercial justification is.
3. Short interviews. We speak with the sales, procurement and bid teams, because what the contract says and what actually happens do not always coincide.
4. Alternative drafting. We propose replacement wording, not just the objection, so the commercial team can keep negotiating.
5. Remediation plan. We prioritise which contracts should be amended now and which can be fixed at the next renewal.

What the client receives

• A document with the clause-by-clause review, the risk attached to each one and the alternative wording proposed.
• Written conduct rules for the teams in contact with competitors, in language a commercial team can actually use.
• A remediation plan with priorities and owners.
• Where the diagnosis reveals material exposure, an analysis of the options available before the authority acts.