Subpart 3.3 - Reports of Suspected Antitrust

Violations

Parent topic: Part 3 - Improper Business Practices and Personal Conflicts of Interest

3.301 General.

(a) Practices that eliminate competition or restrain trade usually lead to excessive prices and may

warrant criminal, civil, or administrative action against the participants. Examples of anticompetitive

practices are collusive bidding, follow-the-leader pricing, rotated low bids, collusive price estimating

systems, and sharing of the business.

(b) Contracting personnel are an important potential source of investigative leads for antitrust

enforcement and should therefore be sensitive to indications of unlawful behavior by offerors and

contractors. Agency personnel shall report, in accordance with agency regulations, evidence of

suspected antitrust violations in acquisitions for possible referral to-

(1) The Attorney General under 3.303; and

(2) The agency office responsible for contractor debarment and suspension under subpart 9.4.

3.302 Definitions.

As used in this subpartIdentical bids means bids for the same line item that are determined to be identical as to unit price

or total line item amount, with or without the application of evaluation factors (e.g., discount or

transportation cost).

3.303 Reporting suspected antitrust violations.

(a) Agencies are required by 41 U.S.C.3707 and 10 U.S.C. 3307 to report to the Attorney General

any bids or proposals that evidence a violation of the antitrust laws. These reports are in addition to

those required by subpart 9.4.

(b) The antitrust laws are intended to ensure that markets operate competitively. Any agreement or

mutual understanding among competing firms that restrains the natural operation of market forces

is suspect. Paragraph (c) of this section identifies behavior patterns that are often associated with

antitrust violations. Activities meeting the descriptions in paragraph (c) are not necessarily

improper, but they are sufficiently questionable to warrant notifying the appropriate authorities, in

accordance with agency procedures.

(c) Practices or events that may evidence violations of the antitrust laws include-

(1) The existence of an "industry price list" or "price agreement" to which contractors refer in
formulating their offers;

(2) A sudden change from competitive bidding to identical bidding;

(3) Simultaneous price increases or follow-the-leader pricing;

(4) Rotation of bids or proposals, so that each competitor takes a turn in sequence as low bidder, or

so that certain competitors bid low only on some sizes of contracts and high on other sizes;

(5) Division of the market, so that certain competitors bid low only for contracts awarded by certain

agencies, or for contracts in certain geographical areas, or on certain products, and bid high on all

other jobs;

(6) Establishment by competitors of a collusive price estimating system;

(7) The filing of a joint bid by two or more competitors when at least one of the competitors has

sufficient technical capability and productive capacity for contract performance;

(8) Any incidents suggesting direct collusion among competitors, such as the appearance of identical

calculation or spelling errors in two or more competitive offers or the submission by one firm of

offers for other firms; and

(9) Assertions by the employees, former employees, or competitors of offerors, that an agreement to

restrain trade exists.

(d) Identical bids shall be reported under this section if the agency has some reason to believe that

the bids resulted from collusion.

(e) For offers from foreign contractors for contracts to be performed outside the United States and

its outlying areas, contracting officers may refer suspected collusive offers to the authorities of the

foreign government concerned for appropriate action.

(f) Agency reports shall be addressed to theAttorney General

U.S. Department of Justice

Washington DC 20530

Attention: Assistant Attorney General

Antitrust Division

and shall include-

(1) A brief statement describing the suspected practice and the reason for the suspicion; and

(2) The name, address, and telephone number of an individual in the agency who can be contacted

for further information.

(g) Questions concerning this reporting requirement may be communicated by telephone directly to
the Office of the Assistant Attorney General, Antitrust Division.