AND DETECTING BID RIGGING,
An Antitrust Primer for Agents and Procurement Officials
American consumers have the right to expect the benefits of free and open competition the best goods and services at the lowest prices. Public and private organizations often rely on a competitive bidding process to achieve that end. The competitive process only works, however, when competitors set prices honestly and independently. When competitors collude, prices are inflated and the customer is cheated. Price fixing, bid rigging, and other forms of collusion are illegal and are subject to criminal prosecution by the Antitrust Division of the United States Department of Justice.
As a member of the Department of Justice Hurricane Katrina Fraud Task Force, the Antitrust Division is committed to offering our expertise and assistance in the wake of the devastation caused by Hurricane Katrina. As FEMA and state and local government agencies with whom FEMA is coordinating begin to solicit competitive bids for rebuilding contracts, the Antitrust Division is prepared to provide assistance to these agencies to protect against bid rigging, price fixing and other collusive conduct among companies competing for rebuilding contracts. Experienced Antitrust Division attorneys are available to provide training to law enforcement agents, auditors, and procurement personnel in the affected areas to assist them in identifying and preventing potential bid rigging and collusion in the competitive bidding process. If collusive conduct is discovered, the Antitrust Division stands ready to criminally prosecute the individuals and corporations seeking to unjustly profit from this tragedy.
The Antitrust Division, FEMA, and other federal law enforcement agencies have collaborated successfully in the past on several occasions to detect and deter anticompetitive conduct. For example, after Typhoon Paka hit Guam in 1997, leaving thousands of people homeless, FEMA made more than $70 million in federal funds available for disaster relief. The Antitrust Division conducted a bid-rigging and public corruption investigation jointly with the U.S. Attorney's Office in Guam and agents from the FEMA Office of Inspector General, the FBI, the IRS, and the Department of Interior. The investigation resulted in numerous convictions, including that of Austin J. "Sonny" Shelton, who was the Director of Guam's Department of Parks and Recreation and was responsible for awarding contracts to repair typhoon damage. Shelton was convicted after trial of organizing three separate bid-rigging conspiracies, soliciting and receiving bribes in return for the award of contracts, committing wire fraud, and conspiring to launder money. Shelton was sentenced to serve eight years in prison. Following that successful partnership, the Antitrust Division also worked with FEMA to provide proactive assistance to the State of New Mexico following the Los Alamos fires in 2000.
This Primer contains an overview of the federal antitrust laws and the penalties that may be imposed for their violation. It briefly describes the most common antitrust violations and outlines those conditions and events that may indicate anticompetitive collusion so that you might better identify and investigate suspicious activity.
II. FEDERAL ANTITRUST ENFORCEMENT
The Sherman Antitrust Act prohibits agreements among competitors to fix prices, rig bids, or engage in other anticompetitive activity. Criminal prosecution of Sherman Act violations is the responsibility of the Antitrust Division of the United States Department of Justice.
Violation of the Sherman Act is a felony punishable by up to 10 years imprisonment and a $1 million fine for individuals and a fine of up to $100 million for corporations. In addition, collusion among competitors may also involve violations of the mail or wire fraud statute, the false statements statute, or other federal felony statutes, all of which the Antitrust Division prosecutes.
In addition to receiving a criminal sentence, a corporation or individual convicted of a Sherman Act violation may be ordered to make restitution to the victims for all overcharges. Victims of bid-rigging and price-fixing conspiracies also may seek civil recovery of up to three times the amount of damages suffered.
III. DETECTING CRIMINAL ANTITRUST VIOLATIONS
Most criminal antitrust prosecutions involve price-fixing, bid-rigging, or market division or allocation schemes. Each of these forms of collusion may be prosecuted criminally if they occurred, at least in part, within the past five years. To prove such a crime, we do not have to show that the conspirators entered into a formal written or express agreement. Price fixing, bid rigging, and other collusive agreements can be established either by direct evidence, such as the testimony of a participant, or by circumstantial evidence, such as suspicious bid patterns, travel and expense reports, telephone records, and business diary entries.
Under the law, price-fixing and bid-rigging schemes are per se violations of the Sherman Act. This means that where such a collusive scheme has been established, it cannot be justified under the law, for example, by arguments or evidence that the agreed-upon prices were reasonable, that the agreement was necessary to prevent or eliminate price cutting or ruinous competition, or that the conspirators were merely trying to make sure that each got a fair share of the market.
One of the most common violations the Division prosecutes is bid rigging. In simple terms, bid rigging is fraud which involves bidding. It is an agreement among competitors as to who will be the winning bidder. Bid rigging occurs when a purchaser solicits bids to purchase goods or services. The bidders agree in advance who will submit the winning bid. The purchaser, which depends on competition between the bidders to generate the lowest competitive price, receives instead a "lowest bid" that is higher than the competitive market would bear.
There are four basic schemes involved in most bid-rigging conspiracies:
Subcontracting arrangements are often part of a bid-rigging scheme. Competitors who agree not to bid or to submit a losing bid frequently receive subcontracts or supply contracts in exchange from the successful low bidder. In some schemes, a low bidder will agree to withdraw its bid in favor of the next low bidder, in exchange for a lucrative subcontract that divides the illegally obtained higher profits between them.
Almost all forms of bid-rigging schemes have one thing in common: an agreement among some or all of the bidders which predetermines the winning bidder and limits or eliminates competition among the conspiring vendors.
Determining the Winner
Participants can decide who wins a particular contract using a number of allocation standards, including:
If a company agrees to intentionally lose business, naturally it must be given some compensation by the winning company. That compensation can take several forms including:
This is what you look for to spot payback patterns:
Price Fixing impacts procurement when business is conducted through purchase order or direct purchase. In this situation, competitors may agree to raise or fix prices they will charge for their goods or services, set a minimum price that they will not sell below, or reduce or eliminate discounts.
As mentioned earlier, allocation schemes may involve bidding or quoted prices for services or goods.
While these indicators may arouse suspicion of collusion, they are not proof of collusion. For example, bids that come in well above the estimate may indicate collusion or simply an incorrect estimate. Also, a bidder can lawfully submit an intentionally high bid that it does not think will be successful for its own independent business reasons, such as being too busy to handle the work but wanting to stay on the bidders' list. Only when a company submits an intentionally high bid because of an agreement with a competitor does an antitrust violation exist. Thus, indicators of collusion merely call for further investigation to determine whether collusion exists or whether there is an innocent explanation for the events in question.
IV. CONDITIONS FAVORABLE TO COLLUSION
While collusion can occur in almost any industry, it is more likely to occur in some industries than in others. An indicator of collusion may be more meaningful when industry conditions are already favorable to collusion.
V. WHAT AGENTS AND AUDITORS CAN DO
Antitrust violations are serious crimes that can cost a company hundreds of millions of dollars in fines and can send an executive to jail for up to ten years. These conspiracies are by their nature secret and difficult to detect. The Antitrust Division needs your help in uncovering them, bringing them to our attention, and working with us to build prosecutable cases.
VI. WHAT PROCUREMENT OFFICIALS CAN DO
If companies are conspiring to collude on prices, the purchasing agent is the last person in the world that they want to know about the scheme. For this reason, even the most conscientious buyer can be victimized. Nonetheless, here are some procedures that can be established to discourage anticompetitive activity.
VII. REPORT YOUR SUSPICIONS
We encourage all agents, auditors, and procurement officials to report suspicions of collusion through appropriate channels in your organization. Your observations may add to information we already have about an industry or, together with other reports, indicate a more widespread problem. Your call will always be appreciated and treated in accordance with our confidentiality policy, and, when warranted, we will conduct an investigation.
VIII. HOW THE ANTITRUST DIVISION CAN HELP
Our role as part of the
Hurricane Katrina Fraud Task Force is to assist federal, state, and
local government agencies in preventing and deterring fraud that subverts
the competitive bid process. In that regard, Antitrust Division attorneys
are available to provide training to law enforcement agents, auditors,
and procurement personnel on the detection of criminal antitrust violations.
We also are available to assist in the review of bids and contracts,
as needed. If violations occur, we stand ready to investigate and
prosecute those cases.
The Antitrust Division is committed to offering our experience and resources to help ensure that the communities hardest hit by Hurricane Katrina are not further victimized by those that seek to subvert competition and divert federal funds to their own pockets and away from the most needed rebuilding projects. Attorneys in the Antitrust Division are happy to answer any questions you may have about possible violations. Please report any suspicions you have of possible antitrust violations to:
Frank J. Vondrak, Assistant Chief, Chicago Field Office
Please contact us at the above telephone numbers or e-mail addresses if you would like one of our attorneys to give a presentation to your group regarding the antitrust laws and detection of criminal antitrust violations. We look forward to working with you!