This Technical Advisory was canceled January 20, 2004.
U.S. Department of Transportation
Federal Highway Administration
GUIDELINES ON CONTRACT PROCEDURES
WITH EMPHASIS ON BID REVIEWS AND EVALUATION
December 17, 1982
- Pre-Bid Considerations
- Engineer's Estimates
- Bid Analysis and Contract Award
- Post-Award Reviews
- Unacceptability for Employment (Debarment) Policy
- To provide guidance for improving current bid review and evaluation policies and procedures.
- To discuss steps that can be taken to help provide a competitive bidding situation thereby resulting in the lowest attainable cost of construction to the contracting agency.
- BACKGROUND. Technical Advisory T 5080.4, Preparing Engineer's Estimate and Reviewing Bids, dated December 29, 1980, addresses the issue of preparing an engineer's estimate and reviewing bids. On August 21, 1981, an American Association of State Highway and Transportation officials (AASHTO) Task Force released suggested guidelines titled "Strengthening Bidding and Contract Procedures." Due to the discovery of widespread contractor bid rigging, it was determined additional guidance in the area of contract administration was warranted.
- PRE-BID CONSIDERATIONS
- Contractor Prequalification
- Prequalification of contractors desiring to bid on a highway construction project does not assure the contracting agency that the firm will submit a competitive bid. In general, contractor requalification has been used as a method to help determine the quantity and type of work a firm is capable of undertaking. Normally the firm's resources, its financial assets, work experience, and its staffing capability must all be identified for it to become prequalified. Some States that do not require prequalification find it necessary to collect some information via a financial statement or some other abbreviated process. These States do not specify the type of work or limit the size of project a firm may bid upon because they feel prequalification may restrict competition unduly. More recently, some States feel they have achieved the desired results by merely allowing any firm that can get sufficiently bonded for the advertised project to be allowed to bid on it.
- While the Federal Highway Administration (FHWA) does not require contractor prequalification, it has recently been identified by some of the States as a useful tool for gathering pertinent information on the intricate management details of a contractor's firm. In the event of a conviction of a crime such as bid rigging, such information proves useful as an aid in determining the appropriate sanctions for the firm and/or the individuals involved. Another possible use would be to determine the relationship of firms bidding on any one project.
- Specific information that should be collectedfrom a firm includes the following: financial resources, principal individuals in the firm (anyone having a 10 percent or more interest in the firm), all affiliates or subsidiary companies including material sources, available equipment, work experience, individuals and organizations that have control or influence over the firm's bidding procedures, and whether the firm has ever been suspended or debarred from bidding and the related circumstances.
- The instructions for completing the work experience section (of the prequalification form) should require that the firm identify all projects for which it was the prime contractor and those on which it worked as a subcontractor during at least the past 2 years as well as the contracting agency for those projects. Also the firms submitting the above information should be advised of how they will be dealt with if it is determined that any of the information submitted is false, e.g., the applicability of a State false statements statute. The information collected should be stored in a computer or be readily accessible otherwise for immediate use if needed.
- Anticollusion Statement. A sworn anticollusion statement should be included as part of the bid proposal package. Under the FHWA's current directive, Federal-Aid Highway Program Manual (FHPM) 6-4-1-6, Contract Procedures, only the successful low bidder is required to submit a sworn anticollusion statement priorto the award of a contract. However, due to the recent discoveries of bid rigging activity, it seems desirable that the States should require all bidders to submit a sworn statement attesting to the fact that the bid has been prepared and submitted independently, without consultation, communication, or agreement for the purpose of restricting competition. If a false statement is submitted by any bidder, sanctions could then be taken against the firm.
- Standard Specifications. All States should have standard specifications that address the issue of evidence of collusion among bidders. Those State specifications that currently address this item generally specify that the State highway agency (SHA) may determine that the bidder is not responsible and reject his/her proposal based on evidence of collusion. In addition to rejection of a firm's proposal, the specification should advise that collusive bidding is a violation of the law and could result in criminal prosecution, civil damage actions, and State and Federal administrative sanctions.
- Bidders' List. Confidentiality of the bidders' list (those firms that have taken out plans and a bid proposal document) has both advantages and possible disadvantages.
- In an effort to create the most competitive environment for potential bidders, a firm should not be aware of the identity of the other potential bidders. An advantage of keeping the bidders' list confidential is that bidders will submit what is believed to be a realistic competitive bid based upon the company's own individual circumstances.
- A possible disadvantage of keeping the bidders' list confidential would be that potential material suppliers and subcontractors would not be informed of what firms to contact for upcoming projects. Therefore, a material supplier may fail to inform a potential bidder of its current prices. However, by the very nature of competitive bidding and the last-minute quotes traditionally provided contractors, it is felt both contractors and suppliers will continue to have adequate communication. Further, since the bidder must perform the contract work with his/her own firm and/or subcontract it, the burden actually lies with the bidder to determine what other firm he/she wants to work with on a project. Unless the project has new or unusual material or construction requirements, it is believed most contractors are aware of the available subcontractors and potential material suppliers. Therefore, it is believed the bidder is generally the one seeking potential subcontractors, especially if Minority Business Enterprise/Women's Business Enterprise (MBE/WBE) goals are included in the proposal. During court testimony, defendants have stated the bidders' list was used to identify other potential prime contractors to be contacted to rig the project bids. Although there are other ways to find out who plans on bidding, i.e., from material suppliers, bonding companies, etc., at least the contracting agency is not providing this information when it keeps the bidders' list confidential. It is recognized that State freedom of information or similar statutes may, however, preclude keeping the bidders' list confidential.
- Competition. Competition for projects by bidders is an integral part of a successful construction program. An effort should be made by the contracting agency to maximize the competition by a number of methods such as those listed below. Other methods to increase competition have been identified in FHPM 6-1-1-1, Controlling Design, Construction, and Maintenance Costs to Combat Inflation, dated January 16, 1981.
- Advertisement should be widespread enough to advise those potential bidders interested in the type of work and size of project involved.
- Consideration should be given to the project's estimated cost/size to maximize the number of bidders. The size normally varies in each State depending on the makeup of the construction industry.
- Jobs should be allowed to be bid individually or in combination.
- Multiple Bid Requirement. If a State law or regulation exists which requires that more than one bid be submitted before award can be made, efforts should be made to revise or repeal it. There is evidence that in those cases where only one contractor was interested in a project and the multiple bid requirement existed, the firm actually contacted other contractors to submit a complementary bid so award could be made. If only one bid is submitted and it far exceeds the estimate, it should be rejected; but if it is at or below the estimate, it should be considered for award.
- Bid Proposal Documents. The SHA's should consider adding the following language to the bid proposal documents: "The apparent low bidder will be required to submit his/her work papers in a sealed envelope prior to being awarded the project. A contractor's workpapers shall include all quotes and calculations used in determining the unit prices which were submitted to the bid. The State-retained envelope will remain sealed unless a controversy arises during construction regarding unit prices or the contractor is suspected of bid rigging."
- ENGINEER'S ESTIMATES
- General. The engineer's estimate is an essential element in the project approval process. In addition to serving as a tool to predict the financial obligations to be incurred, the estimate is used as a guide for reviewing bids by those individuals involved in the award process. The engineer's estimate should reflect the dollar amount a contracting agency considers reasonable for the proposed work. It should be based on current market conditions since prices will vary depending on the amount of work available.
- Preparation. The amount of time and effort spent on preparing engineer's estimate varies extensively depending upon such factors as the size of the contracting agency's construction program, staffing,organization and how much emphasis management believes should be placed on estimate preparation. Because the relationship of the low bid to the estimate is generally a major factor in deciding whether to award or reject bids, the importance of having a good estimate should not be overlooked.
- Historical Data Approach. The most common approach in preparing an estimate is to utilize historical bid data, unit prices, and quantities taken from recently awarded contracts. This data, summarized on a statewide, districtwide, or even a system-type basis, is then adjusted based upon the project conditions such as project quantities, location, overall project size, and general market conditions. This method provides a good estimate if properly adjusted, if current data is utilized, and if factors such as prices based on noncompetitive bids are not included in the average unit price data base. While the historical data approach for all items of the estimate requires the least amount of personnel and time to develop, it is also the easiest to be influenced by an outside factor, such as inflated bid prices based on contracts that were rigged.
- Actual Cost Approach. Another approach used in preparing an estimate is known as the actual cost approach. It takes into consideration all factors related to performing the proposed work; i.e., cost of labor, materials, equipment, production rates, reasonable values for overhead and profit, etc. While this approach should provide the contractingagency and estimate reviewers a better idea of how much a project should cost, it does take a greater commitment of resources to produce the estimate. The preparers should have a good working knowledge of construction techniques and construction equipment, proposed project work and how it will most likely be accomplished, equipment production rates, how much to adjust quotes from material suppliers, potential locations of aggregate or borrow sources, etc. While some material suppliers will quote the same prices to State estimators as they quote to contractors, this is generally not the practice. One State advised that price quotes for pipe materials were adjusted as much as 40 percent downward to be consistent with the contractor's cost. Although the actual cost estimate may also need to be adjusted, based on current market conditions, the base unit prices should be more accurate than on historical data.
- Combination Approach. Another approach used in preparing an estimate is the historical data approach in conjunction with the actual cost approach. Some items could be estimated based on actual costs. It is believed that most projects contain a small number of items that together total a significant portion (+70 percent) of the estimated cost. These items, i.e., Portland cement concrete pavement, structural concrete, structural steel, asphaltic concrete items, embankment, etc., should be estimated on a regular basis at least quarterly, to keep abreast of current market conditions and then adjusted for the specific projects. The remaining items, even though they may be a significant number, could be estimated based on historical data prices and adjusted if necessary for the individual project.
- Procedures and policies concerning confidentiality range from including the total estimated construction cost in the bid proposal to keeping the estimate confidential from the public even after the project has been constructed and opened to traffic. Benefits of making the total estimate public include eliminating the possibility of only one or some of the bidders knowing what the State believes the project is worth plus removing any pressure from State employees to release theestimated cost secretly. One disadvantage of making the estimated cost public is that firms desiring to rig bids can use the engineer's estimate as a basis for determining the low-bid amount to be submitted.
- While confidentiality of the estimate obviously will not by itself successfully deter a firm from conspiring with other bidders, it does prevent bidders from knowing what approximate amount the contracting agency is willing to accept. For those agencies that believe total secrecy from the public is not realistic in their State, as a minimum attempt of confidentiality, a range for the estimated project cost could be provided and included in the bid proposal document. For example, a range could be established as follows:
$ 0-100,000 2,500,000- 5,000,000
1,000,000-2,500,000 greater than 25,000,000
- The present policy in several States of providing a specified dollar amount for a bid bond could indicate the amount of the estimate. This procedure should be revised to specify a percentage of the bid submitted, thus maintaining the confidentiality of the estimate.
- Accuracy of Estimates
- Regardless of what method is used to prepare the estimate or whether the estimate is kept secret or made available to the public, an estimate must have credibility if the process is to be effective. It is realized that estimate preparation is not an exact science; however, it is felt the engineer's estimate should be within +10 percent of the low bid for at least 50 percent of the projects. If this degree of accuracy is not being achieved over a period of time, such as 1 year, confidence in the engineer's estimates may decline. Further, if estimated total costs are made available to the public, even after the letting, and are consistently running well above the low bid (say 15-20 percent) when a sufficient workload is available, bidders may be cognizant of the higher estimates and may submit higher bids accordingly.
- Where confidence in the estimate has been established by the contracting agency, it follows that to be an effective tool, the agency must show that confidence by rejecting those low bids that are not within a reasonable percentage above theestimate. Adjustments to the estimate, for projects to be readvertised, should not be made to correspond to the previous bids submitted without adequate justification.
- BID ANALYSIS AND CONTRACT AWARD. The analysis and award process for a project should be thorough even when the low bid is below or at a reasonable percentage above the engineer's estimate. It is reasonable, however, to expect that larger projects will receive a more thorough review than very small projects.
- Review Factors
- Factors that should be considered in reviewing the bids received for a project include the following:
- number of bids submitted;
- comparison of the bids against the engineer's estimate;
- distribution or range of bids received;
- identity and geographic location of the bidders;
- potential for savings if the project is readvertised;
- bid prices for the project under review versus bid prices for similar projects in the same letting;
- urgency of the project;
- current market conditions/workload;
- any unbalancing of bids;
- which unit bid prices differ significantly from the estimate;
- if there is a justification for the difference; and
- any other factors the contracting agency has determined to be important.
- The influence of any one of the above factors may not be too meaningful. However, when considered in combination, the results could be significant. Although the number of bids received is a measure of bidder interest, by itself the number does not indicate the degree of competition. For example, one would not normally expect a firm that is locat ed near a project to be underbid by a firm located a distance from the project and having extensive mobilization and materials transportation costs if both firms are bidding truly competitively. A number of other factors enter into a particular firm's bid such as workload or the size of project, but a bidder's geographic location is a significant factor.
- Comparison of Bid Prices. A comparison of project unit bid prices should be made at each letting to determine if the contractors are submitting consistent prices on the different projects they bid. In general, there will be an adequate number of projects in each letting to make a comparison except for the large or very specialized jobs. Although the projects being compared may not be in the same geographic area, the reviewers should be aware of any geographic price differences which normally remain constant between areas even when the overall market conditions change.
- Unbalancing of Unit Bid Prices. The unbalancing of unit bid prices by a contractor is difficult to assess in that it is quite normal for different contractors to place their costs such as overhead or their expected profit for the project in the unit cost of different items. Normally these costs will be in those items which the individual contractor has determined will notbe eliminated or significantly underrun. The main concern of the contracting agency should be to assure itself that the bids have not been materially unbalanced in order to take advantage of errors in the plans or specifications. Unbalancing of bids may also occur on those lump-sum items that can be performed in the early stages of the project.
- Review Committee. A multidisciplined review committee should be used to analyze the bids received so that the various perspectives within the contracting agency are represented and are provided with technical and managerial input. This approach can also be used to readily identify the effects of awarding the contract or rejecting the bids. If a review committee is not utilized for analyzing bids, as a minimum, the estimating section should be involved. The estimating section is normally familiar with the project. Any major differences in the unit bid prices and the estimate will be readily identifiable and evaluated. Also, it keeps the estimating section apprised of any trends in the market conditions so the engineer's estimates can be kept current.
- General Guidelines. It may be beneficial for a contracting agency to develop general guidelines to be used in determining whether to award the contract or to reject all bids. However, each project should be considered on its own merits as some will normally have a higher priority to begin construction than others. If guidelines are developed, consideration should be given to the use of a "sliding scale" approach for low bids over the estimate. A low bid 15 percent above theengineer's estimate of $50,000 should not necessarily be treated the same way as a low bid 15 percent above an engineer's estimate of $5,000,000. Also, if guidelines are used, it is recommended that the specifics be kept confidential from the general public so as not to influence contractors who are preparing bids.
- Submission of Bids. If a significant number of firms take out a set of plans and a bidding proposal but only a small percentage, less than 30 percent, actually submit a bid, an effort should be made to determine the reasons for the lack of interest. If the cause for lack of interest can be identified, appropriate steps should be taken to improve the situation.
- POST-AWARD REVIEWS
- Evaluation Period. A conscientious effort should be made to determine if bid rigging is currently ongoing or has occurred in the recent past. To make this determination, an adequate number of projects awarded over a sufficient time period must be evaluated. A time period of approximately 5 years should be selected for the initial evaluation to determine if any abnormal competitive bid patterns exist.
- Review Considerations. The following information should be considered in a post-award review for abnormal bid patterns: (1) number of contract awards to a specific firm; (2) project bid tabulations; (3) firms that submitted a bid and later became a subcontractor on that project; (4) rotation of firms being the low bidder; (5) a consistent percentage differential between the various firms' bids; (6) a specific percentage of the available work in a geographic area to one firm or to several firms over a period of time; (7) a consistent percentage differential between the low bid and the engineer's estimate; (8) location of the low bidder's plant versus location of the second and third low bidders' plants; (9) variations in unit bid prices submitted by a bidder on different projects in the same letting; (10) type of work involved; (11) number of firms that took out a set of plans and a proposal versus the number actually submitting a bid; and, (12) any other items discovered in the review that may indicate noncompetitive bidding. Readvertised projects should be checked to determine if the eventual low bidder was also low in the first letting.
- Analysis. To consider or to analyze the aboveinformation to determine if unusual bid patterns exist, the information for project award must be in a readily accessible form, preferably on a computer. Further, although the analysis can be done manually, use of a computer to analyze the data and to monitor bidding activity will probably be cost effective. A number of programs are currently available for use; however, at this time, FHWA cannot recommend which program is considered to be the most effective. Efforts are underway in FHWA to develop a computer program that will perform an analysis considering most of the information listed in paragraph 6b. It is expected this program will be developed by late 1983, at which time it will be available for use by the SHA's. The use of a computer program is intended only to provide information to indicate whether further investigation is warranted.
- In-depth Post-Award Review. The extent to which an in-depth post-award review should be carried out by FHWA or an SHA will depend upon the circumstances surrounding each particular review. If an FHWA field office believes that irregular bid patterns may exist and further investigation is warranted, any evidence should be furnished to the appropriate Department of Transportation (DOT), Office of the Inspector General (OIG) office and the State. Further, most SHA's should provide any evidence of wrongdoing to its State Attorney General's Office, FHWA, and other appropriate officials. The frequency of the in-depth reviews should be adequate to indicate to the contracting agency that illegal activities are not ongoing or have not occurred in the recent past.
- UNACCEPTABILITY FOR EMPLOYMENT (DEBARMENT) POLICY
- The purpose of a debarment policy is to protect the interest of the contracting agency in the event of illegal acts by a contractor, subcontractor, materials supplier, or any others directly associated with a highway construction project.
- Where such irregularities have occurred on a Federal-aid highway project, FHWA has declared the firms and individuals involved to be "unacceptable for employment" on Federal-aid projects for a specified period of time. The term "debarment" is most commonly used for this type of action by a State. Since the practical effect is essentially the same, the terms are used interchangeably in this Technical Advisory.
- Contracting Agency Policy
- It is desirable that each contracting agency have a written policy addressing what action will be taken in instances of contractor irregularities, such as bid rigging.
- A written policy serves as a deterrent to the contracting industry by advising them, in general terms, what activities the agency considers to be illegal or irresponsible and how it intends to deal with those involved should any wrongdoing be detected. Further, the policy provides a basis for any action(s) that may be taken against the individual or firm involved in the illegal wrongdoing by those responsible for enforcing the policy. Since bid rigging is presumably done for financial gain, for a contracting agency to merely collect restitution for overcharges from the contractor and immediately allow that firm to bid again does not appear to be an effective prevention or deterrent technique.
- It is recommended that debarment policies address each of the following items:
- Whether a suspension approach, by which bidding privileges are temporarily denied on the basis of suspicion or accusation of debarrable offenses, should be established, and if so,what procedures will apply to it.
- The basis for the debarment action, i.e., conviction, guilty plea, or plea of no contest regarding fraud, bribery, collusion, conspiracy, etc. should be included. While debarment action can be based on an indictment or "information" in accordance with a number of State statutes and/or regulations, it is recommended the policy provide that suspension action be taken pending the outcome of the indictment. If found guilty via trial, guilty plea in court, or plea of no contest, unacceptability action could be taken. Also, the policy should provide that action can be taken upon a finding by a State of clear and convincing evidence of a violation of a State or Federal statute without having to go through a court proceeding.
- Applicability of the debarment action to the parent firm, subsidiary, affiliate, or any other connected firms or individuals should be addressed. In order to be effective, all related firms should be covered.
- The time period of unacceptability which may be imposed on the firm or individual should be included. For those State policies currently in effect, the average time limits specified range from 4 months to 3 years. Generally, determinations are based on the degree of involvement, i.e., number of projects and timeperiod, along with the willingness of the firm to cooperate with investigators. The debarment period imposed should not be so severe that competition would become unduly restricted, but it should be of sufficient length to command the convicted bidders' attention as well as to serve as a deterrent for other contractors.
- A process which allows the firm, whenever required by due process considerations, to explain in further detail its involvement, provide an opportunity to request a reduction in the debarment period, and a chance to discuss the steps necessary to be reinstated as an eligible bidder should be established.
- Honoring of other State, Federal, or local government debarment actions should be addressed. If a contractor is not allowed to bid in a State but is permitted to bid in other States, the effectiveness of debarment is diminished. Obviously, each State should consider its debarment action on a case-by-case basis but preferably should make its debarment periods coincide with the time restraints determined by the original debarring agency if the circumstances are indeed similar.
- The policy should prevent a firm, during its debarment period, from engaging in any type of manipulation such as merely changing its name and then being allowed to bid on projects. Further, it should address the treatment of convicted individuals and any firm with which they may be associated. If a contracting agency has prequalification requirements, this problem could be adequately addressed in the personnel experience, projects completed, and/or contractor's equipment section of the prequalification form.
- The attachment is an excerpt of a bill prepared by one of the States dealing comprehensively with collusive bidding. While FHWA does not necessarily endorse all elements of the bill, the bill does provide a good example of items that should be considered in a debarment policy. Because of the nature of some of the items, this particular State has decided to go through the legislative process; most SHA's, however, do have the administrative capabilityto develop policies to implement their programs. Regardless of which process is used to develop a policy, for it to be an effective deterrent, the agency must implement and enforce it as outlined. Details of a new policy or revisions to an existing debarment policy should be promptly furnished to prospective bidders.
- Internal Policy. In addition to developing a debarment policy for the contractors, an internal policy should be developed to identify specific individuals/positions who will be responsible for handling inquiries or for receiving reports of suspicious illegal activities. Further, an awareness within the agency of the bid rigging problem, i.e., magnitude, potential costs, and what constitutes illegal activity, should be conveyed to all employees.
- FHWA Policy. The FHWA is currently working with the Office of the Secretary of Transportation to develop a Departmentwide unacceptability for employment (debarment) policy. The new policy would apply to all Department of Transportation operating administrations, i,e., Federal Aviation Administration, Federal Railroad Administration, Urban Mass Transportation Administration, etc., in lieu of being applicable to only Federal-aid or direct Federal highway projects.
- DISCUSSION. This Technical Advisory is intended for guidance purposes; it provides suggestions for strengthening current policies and procedures. One item that should be further stressed is maintaining open lines of communication. The FHWA believes that one of the most effective deterrents for contractor bid rigging is strong commitment by the administrators/managers of the contracting agencies to not tolerate any illegal activities such as bid rigging. The construction industry should be made aware of the States' attitude on bid rigging. Open communication is necessary not only with the construction industry, but also with other States, other agencies within the State, and local governments especially if they are advertising and awarding projects for the SHA's.
for Engineering and Operations
SAMPLE DEBARMENT POLICY
Relating to the regulation of contractors bidding on and performing public contracts.
SECTION 1. deleted
SECTION 2. deleted
SECTION 3. Every person who shall engage in any conspiracy, combination, or any other act in restraint of trade or commerce or declared to be unlawful by the provisions of ( ) shall be guilty of a Class A felony under this section where the combination conspiracy or other unlawful act in restraint of trade involves:
- A contract for the purchase of equipment, goods, services, or materials or for construction or repair of a public improvement let or to be let by a public agency.
- A subcontract for the purchase of equipment, goods, services, or materials or for the construction or repair of a public improvement with a prime contractor or proposed prime contractor for a public agency.
- A contract for the providing of services of any nature to a public agency.
SECTION 4. A conviction of violation of Section 3 of this act shall be punished as a Class A felony. Notwithstanding any other provision of law, the court may also impose a fine up to(_______)on any convicted individual and a fine of up to (_______)on any convicted corporation. Any fine imposed pursuant to this section shall not be deductible on a State income tax return for any purpose.
SECTION 5. deleted
- Any public agency shall have the authority to suspend for a period of up to 3 years from the date of conviction, or, if the conviction is appealed, from the final decision of the last appellate court to rule on the appeal, any person and any corporate employee or subsidiary of any person from further bidding on any public agency contracts, from being a subcontractor on any public contracts and from being a supplier to any public agency or on any public contract if that person or any officer, director, employee, or agent of that person has been convicted of charges of engaging in any conspiracy, combination, or other unlawful act in restraint of trade or of similar charges in any Federal court or of a court of this or any other State.
- A public agency may order a temporary suspension as a bidder of any contractor, subcontractor or supplier or corporate employer or subsidiary thereof charged in an indictment or criminal information in a Federal court or in a court of this or any other her State, with engaging in any conspiracy, combination, or any unlawful act in restraint of trade in any Federal court or court of this State or any other State until such time as the charges are finally resolved. Any person so suspended shall be sent notice of the suspension by certified mail.
- Any person temporarily suspended by agency action pursuant to (2) of this section may, within 60 days of the certified mailing to that person of a copy of the notice of suspension, request a hearing to determine the validity of the temporary suspension. The scope of such hearing shall be limited to the issue as to whether or not the aggrieved party has been charged, in an indictment or criminal information in a Federal court, or a court of this or any other State, with engaging in any conspiracy, combination or any unlawful act in restraint or trade.
- The provisions of this section are in addition to and not in derogation of any other powers and authorities of any public agency.
- Any public agency entering into a contract which is or has been a subject of a conspiracy shall have a right ofaction against the participants in the conspiracy to recover damages, as provided herein. A public agency may proceed with such right of action regardless of whether it was a direct or indirect purchaser of the goods, services, or property involved. The public agency shall have the option to proceed jointly or severally in a civil action against any one or more of the participants for recovery of the full amount of the damages. There shall be no right to contribution by defendants among participants in the conspiracy.
- At the election of the public agency the measure of damages recoverable under this section shall be either the actual damages proven, if any, or 10 percent of the contract price, and the one selected shall be trebled.
- If the public agency prevails in an action brought pursuant to this section, it shall also recover its necessary reasonable investigative costs and reasonable experts' fees and a reasonable attorney fee at trial and on appeal.
- The cause of action shall accrue at the time of discovery of the conspiracy by the public agency which entered into the contract. The action shall be brought within 4 years of the date of accrual of the cause of action.
SECTION 8. Any person having knowledge of acts committed in violation of ( )involving a contract with the public agency who reports the same to that public agency and assists in any resulting proceedings may receive a reward as set forth herein. The public agency is authorized to pay to the informant, in its discretion, up to 25 percent of any civil damages that it collects from the violator named by the informant by reason of information furnished by the informant. The information and knowledge to be reported includes but is notlimited to any agreement or proposed agreement or offer or request for agreement among contractors, subcontractors, or suppliers to rotate bids, to share the profits with contractors not the low bidder, to sublet work in advance of bidding as a means of preventing competition, to refrain from bidding, to submit prearranged bids, to submit complementary bids, to set up territories to restrict competition or to alternate bidding, or to otherwise violate ( ).
SECTION 9. A sworn affidavit of noncollusion may be required by rule or ordinance of any public agency from all prime bidders. Any such requirements shall be set forth in the invitation to bid. Failure of any bidder to provide a required sworn affidavit to the public agency shall be grounds for disqualification of its bid. The provisions of this section are in addition to and are not in derogation of any other powers and authority of any public agency.
SECTION 10. Any person who shall commit perjury in any affidavit made pursuant to this section or rules or ordinances adopted pursuant hereto shall be guilty of a Class C felony.
- Any public agency responsible for letting public contracts may promulgate rules concerning the confidentiality of:
- the agency cost estimate for any public contract prior to bidding; and
- the identity of contractors who have obtained proposals for bid purposes for a public contract.
- If the agency rules or ordinances require that such information be kept confidential, an employer or officer of the agency who divulges such information to any unauthorized person shall be subject to disciplinary action.
United States Department of Transportation - Federal Highway Administration