CHAPTER 45

ANTIBID-RIGGING

 

Sec.

4501.  Short title of chapter.

4502.  Definitions.

4503.  Prohibited activities.

4504.  Civil action and damages.

4505.  Suspension or debarment.

4506.  Liability for increased costs.

4507.  Noncollusion affidavits.

4508.  Responsibility for enforcement.

4509.  Investigation.

 

Enactment.  Chapter 45 was added May 15, 1998, P.L.358, No.57, effective in 180 days.

Cross References.  Chapter 45 is referred to in section 11901.7 of Title 11 (Cities).

§ 4501.  Short title of chapter.

This chapter shall be known and may be cited as the Antibid-Rigging Act.

§ 4502.  Definitions.

The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:

"Bid-rigging."  The concerted activity of two or more persons to determine in advance the winning bidder of a contract let or to be let for competitive bidding by a government agency. The term includes, but is not limited to, any one or more of the following:

(1)  Agreeing to sell items or services at the same price.

(2)  Agreeing to submit identical bids.

(3)  Agreeing to rotate bids.

(4)  Agreeing to share profits with a contractor who does not submit the low bid.

(5)  Submitting prearranged bids, agreed-upon higher or lower bids or other complementary bids.

(6)  Agreeing to set up territories to restrict competition.

(7)  Agreeing not to submit bids.

"Government agency."  The Commonwealth and any of its departments, boards, agencies, authorities and commissions, any political subdivision, municipal or other local authority or any officer or agency of any political subdivision or local authority.

"Person."  An individual, corporation or partnership or any other entity capable of submitting a bid to the Commonwealth.

§ 4503.  Prohibited activities.

(a)  Bid-rigging unlawful.--It is unlawful for any person to conspire, collude or combine with another in order to commit or attempt to commit bid-rigging involving:

(1)  A contract for the purchase of equipment, goods, services or materials or for construction or repair let or to be let by a government agency.

(2)  A subcontract for the purchase of equipment, goods, services or materials or for construction or repair with a prime contractor or proposed prime contractor for a government agency.

(b)  Simultaneous bids.--Notwithstanding other provisions of this chapter, it is not unlawful for the same person to simultaneously submit bids for the same work, or a portion thereof, as a proposed prime contractor and subcontractor.

(c)  Fines and imprisonment.--Any person who violates this section commits a felony of the third degree and shall, upon conviction, be sentenced to pay a fine of not more than $1,000,000 if an entity other than an individual or a fine of not more than $50,000 if an individual or to serve a term of imprisonment for not more than three years, or both.

(d)  Alternative civil penalty.--In lieu of criminal prosecution for violation of this section, the Attorney General may bring an action for a civil penalty. In this action, a person found by a court to have violated this section shall be liable for a civil penalty of not more than $100,000.

(e)  Disposition of fines and penalties.--Criminal fines and civil penalties collected under subsections (c) and (d) shall be paid into the State Treasury and deposited in the appropriate fund.

(f)  Factors to be considered in determining fines, imprisonment or civil penalties.--In determining the appropriate sanctions to be imposed for a violation of this section, the court shall consider at least the following three factors:

(1)  The prior record and the number of previous violations.

(2)  The net worth of the person.

(3)  The size and amount of the contract involved.

(g)  Civil action not barred.--A conviction or civil penalty imposed under this section shall not bar a government agency from pursuing additional civil action and administrative sanctions.

(h)  Limitation on prosecution.--No criminal prosecution under this section shall be brought against a person who has been previously charged by information or indictment with a criminal violation of the Federal antitrust laws, based upon the same allegedly unlawful conduct upon which a criminal prosecution under this chapter could be based, where jeopardy has attached under the Federal prosecution.

 

Cross References.  Section 4503 is referred to in sections 4504, 4505, 4508, 4509 of this title.

§ 4504.  Civil action and damages.

(a)  Government agency to have right of action.--Any government agency entering into a contract which is or has been the subject of activities prohibited by section 4503 (relating to prohibited activities) shall have a right of action against the participants in the prohibited activities to recover damages.

(b)  Options.--The government agency shall have the option to proceed jointly and 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 among participants not named defendants by the government agency.

(c)  Measure of damages.--The measure of damages recoverable under this section shall be the actual damages, which damages shall be trebled plus the cost of suit, including reasonable attorney fees.

(d)  When cause of action arises.--The cause of action shall arise at the time the government agency which entered into the contract discovered or should have discovered the conduct amounting to the unlawful offense. The action shall be brought within four years of the date that the cause of action arose. No civil action shall be maintained after the expiration of ten years from the date the contract was signed by the parties.

(e)  Conviction to be dispositive of liability.--Any conviction under section 4503 shall be dispositive of the liability of the participants with the only issues for trial being the fact and amount of damages.

 

Cross References.  Section 4504 is referred to in section 4508 of this title.

§ 4505.  Suspension or debarment.

(a)  Maximum suspension or debarment.--A government agency proceeding under its rules and regulations to exclude or render ineligible a person from participation in contracts or subcontracts based upon conduct prohibited by section 4503 (relating to prohibited activities) shall limit the exclusion or ineligibility to a period not to exceed the following:

(1)  Three years in the case of a person found for the first time to have engaged in this conduct.

(2)  Five years in the case of a person found to have engaged in this conduct for a second or subsequent time.

(b)  Lists of persons excluded.--A government agency that lets a contract by competitive bidding shall maintain a current list of persons excluded or ineligible by reason of suspension or debarment for participation in contracts or subcontracts with that agency and shall furnish a copy of the list upon request to a person considering the submission of a bid as a prime contractor or as a subcontractor.

§ 4506.  Liability for increased costs.

A person who enters into a contract with a government agency, either directly as a contractor or indirectly as a subcontractor, during a period of suspension or debarment imposed upon that person by that agency under its rules and regulations shall be liable to the government agency and to an eligible contractor for increased costs incurred as a result of replacing the excluded or ineligible person.

§ 4507.  Noncollusion affidavits.

Noncollusion affidavits may be required by rule or regulation of any government agency for all persons. Any requirement for noncollusion affidavits shall be set forth in the invitation to bid. Failure of any person to provide a required affidavit to the government agency may be grounds for disqualification of his bid. Any required noncollusion affidavit shall state whether or not the person has been convicted or found liable for any act prohibited by Federal or State law in any jurisdiction involving conspiracy or collusion with respect to bidding on any public contract within the last three years. The form for any required noncollusion affidavit shall provide that the person's statement on the affidavit that he has been convicted or found liable for any act prohibited by Federal or State law in any jurisdiction involving conspiracy or collusion with respect to bidding on any public contract within the last three years does not prohibit a government agency from accepting a bid from or awarding a contract to that person, but it may be grounds for administrative suspension or debarment in the discretion of the government agency under the rules and regulations of that agency or, in the case of a government agency with no administrative suspension or debarment regulations or procedures, may be grounds for consideration on the question of whether the agency should decline to award a contract to that person on the basis of lack of responsibility. The provisions of this section are in addition to and not in derogation of any other powers and authority of any government agency.

§ 4508.  Responsibility for enforcement.

(a)  Criminal prosecution.--The Office of Attorney General and the district attorneys of the several counties shall have concurrent jurisdiction for the investigation and prosecution of violations of section 4503 (relating to prohibited activities).

(b)  Civil action.--The Office of Attorney General shall have the authority to bring civil action under section 4504 (relating to civil action and damages) on behalf of the Commonwealth and any of its departments, boards, agencies, authorities and commissions. Political subdivisions or municipal or other local authorities or any officer or agency of any such political subdivision or local authority shall have the right to bring a civil action under section 4504. Upon the filing of a complaint, a copy shall be served on the Attorney General. The plaintiff, at any time, may request the Attorney General to act on its behalf. The Attorney General, upon determining that it is in the best interest of the Commonwealth, shall have the authority to intervene on behalf of the Commonwealth in these actions.

§ 4509.  Investigation.

(a)  Required attendance.--Whenever the Office of Attorney General believes that a person may be in possession, custody or control of documentary material or may have information relevant to the subject matter of a civil investigation for the purpose of ascertaining whether a person is or has been engaged in a violation of this chapter, the Attorney General may require the attendance and testimony of witnesses and the production of books, accounts, papers, records, documents and files relating to the civil investigation. For this purpose, the Attorney General or his representatives may sign subpoenas, administer oaths or affirmations, examine witnesses and receive evidence during the investigation. A request for information shall state the subject matter of the investigation, the conduct constituting the alleged violation which is under investigation and the provisions of this chapter applicable to the alleged violation. A request for documentary material shall describe the material to be produced with reasonable particularity so as to fairly identify the documents demanded, provide a return date within which the material is to be produced and identify the member of the Attorney General's staff to whom the material shall be given. In case of disobedience of a subpoena or the contumacy of a witness appearing before the Attorney General or his representative, the Attorney General or his representative may invoke the aid of a court of record of this Commonwealth, and the court may issue an order requiring the person subpoenaed to obey the subpoena or to give evidence or to produce books, accounts, papers, records, documents and files relative to the matter in question. Failure to obey an order of the court may be punished by the court as a contempt.

(b)  Confidentiality.--No information or documentary material produced under a demand under this section shall, unless otherwise ordered by a court for good cause shown, be produced for inspection or copying by, nor shall the contents be disclosed to, a person other than the Attorney General or his representative without the consent of the person who produced the information or material. However, the Attorney General or his representative shall disclose information or documentary material produced under this section or information derived therefrom to officials of a government agency affected by the alleged violation, for use by that agency in connection with an investigation or proceeding within its jurisdiction and authority, upon the prior certification of an appropriate official of the agency that the information shall be maintained in confidence other than use for official purposes. Under reasonable terms and conditions as the Attorney General or his representative shall prescribe, the documentary material shall be available for inspection and copying by the person who produced the material or a duly authorized representative of that person. The Attorney General or his representative may use the documentary material or information or copies as he determines necessary in the civil enforcement of this chapter, including presentation before any court. Material which contains trade secrets or other highly confidential matter shall not be presented except with the approval of the court in which a proceeding is pending after adequate notice to the person furnishing the material.

(c)  Limitation on use.--No criminal prosecution under section 4503 (relating to prohibited activities) may be brought by either the Attorney General or a district attorney based solely upon information or documents obtained in a civil investigation under this section.