How bid rigging is treated
Agreements among competitors about who will be awarded a contract, or about what each will bid, are treated as serious antitrust violations in the United States. The Antitrust Division of the Department of Justice prosecutes them criminally, and state attorneys general, including New York's, enforce their own antitrust laws as well. Public procurement draws particular attention, and federal agencies run a dedicated effort aimed at collusion in government purchasing. Beyond prosecution, companies can face civil claims from buyers who paid inflated prices, along with suspension or debarment from public work. Individual employees can be charged personally, not only the company.
If questions are being asked
Investigations often surface through a subpoena, an unexpected visit from agents, or a call from a procurement officer. Preserve documents and messages immediately, including those on personal phones and messaging apps, and suspend any routine deletion. Do not discuss the matter with competitors, and do not coach employees about what to say. Employees contacted by agents may speak with them or decline, and they may want their own counsel, since their interests and the company's can diverge. Knowingly giving false information to investigators is a separate crime, so any statement should be truthful and made with advice.
Decisions that come early
Timing can matter a great deal. The Antitrust Division runs a leniency program that can offer significant benefits to a company that reports collusion and cooperates, but the benefit is generally tied to being first, so whether and when to approach the government deserves prompt attention. In an early meeting we look at what has happened so far, who knows about it, and whether an internal review should be started under counsel's direction so that privilege protects it as far as the law allows. We also consider whether individuals need separate representation and how the company should handle the bids it is preparing now. These decisions are difficult to revisit once made, so we take them carefully.
