27 Miss. Code. R. 1-3-702
When, for any reason collusion or other anti-competitive practices are suspected among any bidders or offerors, a notice of the relevant facts shall be transmitted to the Attorney General.
For the purposes of this section, an anti-competitive practice is a practice among bidders or offerors which reduces or eliminates competition or restrains trade. An anti-competitive practice can result from an agreement or understanding among competitors to restrain trade such as submitting collusive bids or proposals, or result from illicit business actions which have the effect of restraining trade, such as controlling the resale price of products or an improper collective refusal to bid. Indications of suspected anti-competitive practices include, but are not limited to, identical bids or proposals, rotated low bids or proposals, sharing of the business, "tie-in" sales, resale price maintenance, and group boycotts.
Note: Bidders and offerors are prohibited by federal and Mississippi law from collectively responding to a solicitation in a manner that controls directly or indirectly the price of a supply, service, or construction item sought. Miss. Code Ann. § 75-21-15 (1972, as amended). This prohibition may extend to such actions establishing any of the following: minimum or maximum prices; uniform list prices; uniform credit terms; uniform discounts; uniform costs and mark-ups; uniform trade-in allowances; specified price differentials between varying grades of the same product, price ranges, price scales or price calculation formulas; and, minimum fee schedules.
Every solicitation shall provide that by submitting a bid or offer, the bidder or offeror certifies that the price submitted was independently arrived at without collusion. The agency may require the signing of a separate form which certifies that the price in the bid or offer was arrived at independently.
In order to assist in ascertaining whether or not an anti-competitive practice may have occurred or may be occurring, the Procurement Officer should be alert and sensitive to conditions of the market place and will often find it necessary to study past procurements including, as appropriate, the following:
The term "identical bidding" means the submission by bidders or offerors of the same total price or the same price on a particular line item. The submission of identical bids may or may not signify the existence of collusion.
In seeking to determine whether collusion has taken place, the Procurement Officer should view the identical bids against present and past pricing policies of the bidders or offerors, the structure of the industry involved including comparisons of price, and the nature of the service.
The practices which are described in Subsection 3-702.05.2 through Section 3-702.05.6 and which the Procurement Officer suspects might be anti-competitive shall be reported to the PSCRB.
Rotated low bids or proposals result where all bidders or offerors participating in the collusive scheme submit bids and by agreement alternate being the lowest bidder or offeror. To aid in determining whether rotation may be occurring, the Procurement Officer must review past similar procurements in which the same bidders or offerors have participated.
Sharing of the business occurs where potential bidders or offerors allocate business among themselves based on the customers or territory involved. Thus, a Procurement Officer might discover that a potential bidder or offeror is not participating in a Mississippi procurement because a particular Mississippi agency or a particular territory has not been allocated to such bidder or offeror.
"Tie-in" sales are those in which a bidder or offeror attempts to sell one supply or service only upon the condition that the Procurement Officer purchase another particular supply or service.
A group boycott results from an agreement between competitors not to deal with another competitor or not to participate in, for instance, a Mississippi procurement until the boycotting competitors' conditions are met by the boycotted competitor or the State. The boycott of a competitor by other competitors may have an effect on the market structure or price of a service needed by the State.
Note:Protecting the principles of competition in public procurement is a difficult and often complex task. A program of communication and cooperation between procurement and legal offices, institutionalized to the extent feasible, is essential in combating anti-competitive practices.
27 Miss. Code. R. 1-3-702
Protecting the principles of competition in public procurement is a difficult and often complex task. A program of communication and cooperation between procurement and legal offices, institutionalized to the extent feasible, is essential in combating anti-competitive practices.