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APPENDIX Y.-EXCERPTS FROM THE DEFENSE DEPARTMENT INSPECTOR GENERAL REPORT, "INDICATORS OF FRAUD IN DEPARTMENT OF DEFENSE PROCUREMENT," REPRINTED IN FEDERAL CONTRACTS REPORT (VOL. 42), DATED SEPTEMBER 10, 1984

TEXT

EXCERPTS FROM THE DEFENSE DEPARTMENT
INSPECTOR GENERAL REPORT, "INDICATORS OF
FRAUD IN DEPARTMENT OF DEFENSE PROCUREMENT"

C. Fraud in the Development of Statements of work and
30ecifications

detailing

the

are

Bid specifications and statements of work
types and amounts of goods or services to be provided
prepared to assist in the selection process. They are intended
to provide both potential bidders and the selecting officials
with a firm basis for making and accepting bids. A well
written contract will have specifications, standards and
statements of work which make it clear what the Government is
entitled to. Sloppy or carelessly written specifications make
it easy for a contractor to claim that it is entitled to aore
money for what the Government later defines as what it really
wants.
Sometimes, there is deliberate collusion between
Government personnel and the contractor to write vague
specifications. At other times there is an agreement to amend
the contract to increase the price immediately after the award.
One contractor actually developed a "cost enhancement plan,"
identifying all of the changes he would make in order to double
the cost of the contract, before it was even signed.

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FEDERAL CONTRACTS REPORT

2. Falsified statements to justify sole negotiated procurement.

source or

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3. Justifications for sole source or procurement signed by officials without authority deliberate by-passing of required levels of review.

4. Placing any restrictions in the solicitation documents which would tend to restrict competition.

5. Providing any advance information to contractors
or their representatives on 4 preferential basis by technical
or contracting personnel.

E. Fraud in Solicitation Phase Fraud indicators include:

1. Restricting procurement to exclude or hamper any

qualified contractor.

2. Limiting time for submission of bids SO only those with advance information have an adequate time to prepare bids or proposals.

3. Revealing any information about procurement to contractor which is not revealed to all (from either technical or contracting personnel).

one

invites

bid

4. Conducting bidders conference in rigging or price fixing or permits communications between contractors (See Chapter IV).

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5. Failure to assure a sufficient number potential competitors are aware of the solicitation. (Use of obscure publications, publishing in holiday season, providing a vague or inadequate synopsis to Commerce Business Daily, etc.)

6.

implied that if you use the referred business, you will be more likely to get the contract.)

include

13. Failure to amend solicitation to necessary changes or clarifications. (Telling one contractor of changes that can be made after award.)

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3. Change in a bid after othe: bidders prices are known. This is sometimes done by mistakes deliberately "planted in a bid.

4. Withdrawal of the low bidder who may become a subcontractor to the higher bidder who gets the contract.

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8. Falsification information contractor Bid solicitation is vague as to the time, place, qualifications, financial capability, facilities, Ownership of or other requirements for submitting acceptable bids. equipment and supplies, qualifications of personnel and successful performance of previous jobs, etc. Little or no control over the number destination of bid packages sent to interested bidders. Fraud in the Evaluation of Bids and Proposals

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8. Improper communication with contractors at
professional meetings or improper Social contact with
contractor representatives.

or

9. Government personnel or their families acquiring
stock or a financial interest in a contractor or subcontractor.
personnel

10. Government

discussing possible
employment with a contractor or subcontracto: for themselves or
family member.

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Deliberately discarding or "losing the bid or
proposal of an "outsider" who wants to participate. (May be
part of a conspiracy between a Government official and a select
contractor or group cf contractors.)

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nonresponsive bids from preferred

4. Seemingly unnecessary contacts with contractor personnel by persons other than the contracting officer during the solicitation, evaluation, and negotiation processes.

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Published by THE BUREAU OF NATIONAL AFFAIRS, INC., Washington, DC. 20037

TEXT

(Vol. 42)

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343

5. Any unauthorized release of information to contractor or other person.

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6. Any exercise of favoriti toward a particular contractor during the evaluation process.

7. Using biased evaluation criteria or using biased individuals on the evaluation panel.

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1. Award of a contract to a contractor the lowest responsible, responsive bidder.

who is not

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6. Advance information concerning who is going to win a major competition can give advantages to persons trading in the stock of both the winning and losing companies.

7. Awards made to contractors with an apparent history of poor performance.

8. Awards made to the lowest of a very few bidders
without readvertising considerations or without adequate
publicity.

9. Awards made that include items other than those
contained in bid specifications.

10. Awards made without adequate documentation of all preaward and postaward actions including all understanding or oral agreements.

I. Fraud in the Negotiation of a Contract

of

There are a number of abuses which can Occur in the negotiation of a contract. The first stems from the assumption many personnel that once it has been determined that negotiated procurement procedures can be used (called procurement with discussions in the new FAR), that procurement on a sole source basis has also been justified. Whether a contracting officer is making the decision on 3 small dollar contract or formal determination is being made by highe: authority. Competition required unless specific justifications exist and are documented.

Fraud indicators include:

1. "Back-dated" or after-the-fact justifications may appear in the contract file or may be signed by persons without the authority to approve noncompetitive procurement.

2. Information given to one contractor which is not given to others which give it a competitive advantage.

3. Improper release of information (e.g., prices in proposals, technical proposals or characteristics of proposals, identity or rank of competing proposals, proprietary data or trade secrets, and Government price estimates) to unauthorized persons.

D

4. Weakening the Government's negotiating position through disclosures to the contractor selected for award. Contractor misrepresentation as negotiations (See Chapter III).

5.

6.

to costs during

to obtain

and

Failure of Government personnel rely upon a Certificate of Current Cost or Pricing Data.

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September 1983, the Director of DCAA issued

a

aemorandum to DCAA auditors stating guidance in the area of
defective pricing where certain conditions exist which might
indicate fraud. Auditors were instructed that when indications
of fraud are found, the case will be referred to the proper
investigative agencies. They include:

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3. Failure to correct known system deficiencies. 4. Failure to update cost or pricing data knowledge that past activity showed that prices have decreased. 5. Specific knowledge, that 13 not disclosed, regarding significant cost issues that will reduce proposal costs. This may be reflected in revisions in the price of a major subcontract, settlement of union negotiations that result in lower increases on labor rates, etc.

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FEDERAL CONTRACTS REPORT

8. Indications of falsification supporting data.

alteration or

of

9. Distortion of the overhead accounts or base
information by the transfer of charges or accounts that have a
material impact on Government contracts.

10. Failure to make complete known to responsible contractor personnel.

disclosure of data

11. Protracted delay in release of data to the Government to preclude possible price reductions.

12. The employment of people known to have previously perpetuated fraud against the Government.

These indicators should be applied as well by contracting officers and others involved in the procurement process. Particular note should be made in defective pricing cases that the "intent" of the contractor will be critical to a determination of whether criminal act occured. The deliberate concealment or misrepresentation of a single significant cost element could constitute a prosecutable crime. The establishment of intent should be the function of trained criminal investigators; auditors and contracting officials should make no assumptions that defective pricing results from unintentional conduct.

C.

Indicators of Collusive Bidding and Price Fixing

The following list of indicators is intended to facilitate recognition of those situations which may involve collusive bidding or price fixing. In and of themselves these indicators will not prove that illegal anticompetitive activity is occuring. They are, however, sufficient to warrant referral to appropriate authorities for investigation. Use of indicators such as these to identify possible anticompetitive activity is important because schemes to restrict competition are by their very nature Secret and their exact nature visible.

is not readily

Practices or events that may evidence collusive bidding or price fixing are:

A

1. Bidders who are qualified and capable of performing but who fail to bid, with no apparent reason. Situation where fewer competitors than normal submit bids typifies this situation. (This could indicate a deliberate scheme to withhold bids.)

contractors

2. Certain bid always against each other or conversely certain contractors do not bid against one another.

work

3.

The successful bidder repeatedly subcontracts to companies that submitted higher bids or to companies that picked up bid packages and could have bid as prime contractors but did not.

contractors appear

to

4. Different groups of specialize in federal, state or local jobs exclusively. (This might indicate a market division by class of customer.)

5. There is an apparent pattern of low bids
regularly reoccurring, such as corporation "x" always being the
low bidder in a certain geographical area or in a fixed
rotation with other bidders.

an

6. Failure of original bidders to rebid, or
identical ranking of the same bidders upon rebidding, when
original bids were rejected as being too tar over the
Government estimate.

7. A certain company appears to be bidding substantially higher on some bids than on other bids with no logical cost differences to account for the increase, i.e., a local company an is bidding higher prices for item to be delivered locally than for delivery to points farther away.

8. Bidders that ship their product a short distance bid more than those who must incur greater expense by shipping their product long distances.

9. Identical bid amounts on a contract line item by two or more contractors. Some instances of identical line item bids are explainable, as suppliers often quote the same prices to several bidders. But a large number of identical bids on any service-related item should be viewed critically.

10. Bidders frequently change prices at about the same time and to the same extent.

11. Joint venture bids where either contractor could have bid invididually as a prime. (Both had technical capability and production capacity.)

12. Any incidents suggesting direct collusion among competitors, such as the appearance of identical calculation or spelling errors in two or more competitive bids or the submission by one firm of bids for other firms.

appear to

13. Competitors regularly socialize or
hold meetings, or otherwise get together in the vicinity of
procurement offices shortly before bid filing deadlines.

or

14. Assertions by employees, former employees, competitors that an agreement to fix bids and prices or

otherwise restrain trade exists.

15. Bid prices appear to drop whenever a new or infrequent bidder submits a bid.

16. Competitors exchange any form of price information among themselves. This may result trom the existence of an industry price list" or "price agreement" to which contractors refer in formulating their bids or it may take other subtler forms such as discussions of the "right price."

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TEXT

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345

17. Any reference by bidders to "association price
schedules,
schedules,"
"industry price
"industry suggested
prices, • "industry-wide prices" or "market-wide prices."

18. A bidder's justification for a bid price or
terms offered because they follow the industry Ог industry
leader's pricing or terms, this may include a reference to
tollowing a named competitors pricing or terms.

19. Any statements by a representative of 3
contractor that his Company "does not sell in a particular
area or that "only a particular firm sells in that area."

20. Statements by a bidder that it is not their turn to receive a job or conversely that it is another bidders turn.

D.

Collusive Bidding and Price Fixing Examples

The following sections describe common collusive bidding and price fixing schemes which DOD personnel may be able to recognize. These schemes relate to one another and overlap. Frequently an agreement by competitors to rig bids will involve more than one of these schemes.

1.

Bid Suppression or Limiting

In this type of scheme One or more competitors
agree
with at least one other competitor to refrain from
bidding or agree to withdraw a previously submitted bid so that
Competitor's bid will be accepted. Other forms of this
activity involve agreements by competitors to fabricate bid
protests or to coerce suppliers and subcontractors not to deal
with nonconspirators who submit bids.

a

2. Complementary Bidding

known

as

"Complementary bidding" (also "protective" or "shadow" bidding) occurs when competitors Subait token bids that are too high to be accepted (or if competitive in price, then on special terms that will not be acceptable). Such bids are not intended to secure the buyer's acceptance, but are merely designed to give the appearance of genuine bidding.

3. Bid Rotation

on

In "bid rotation," all vendors participating in the scheme submit bids, but by agreement take turns being the low bidder. In its most basic form bid rotation will consist of cyclical pattern a for submitting the low bid certain contracts. This rotation may not be as obvious as might be expected if it coupled with a scheme for awarding subcontracts to losing bidders, to take turns according to the of the contract, of the other market division schemes explained below.

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refrain

4.

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division schemes are agreements to 10 a designated portion of a market.

Division of a market for this purpose may be accomplished based on the customer ос geographic area involved. The result of such a division is that competing firms will not bid or wi!! Submit only complementary bids when a solicitation for bids is made by a customer or in an area not assigned to them.

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Cost mischarging is one of the abuses which is common because of the fact that most large Covernment research and development and production contracts are cost type contracts. Because the Government reimburses all costs which are allowable, allocable and reasonable, the contractor may increase profit by mischarging. If labor costs are mischarged, they may be multiplied by 100%-300% 10 indirect cost allowances. Sometimes a contractor is doing similar work for different agencies on fixed priced and cost type contracts. Any work which can be billed to the cost type contracts will be advantageous to the contractor. Sometimes these costs are shifted into indirect cost pools.

Frequently work that is being done by low level
technicians is billed as being done by senior scientists or
engineers at much higher rates. Some work may be billed to
several contracts or indirect cost pools. The Government may
be billed for the highest cost items by a contractor and these
items may be diverted to its commercial work or the contractor
may get "discounts" which are not passed on to the Government
or which are applied to its commercial accounts.

The issue as to whether a mischarge was a "mistake" or a
crime often depends on the issue of intent. Managers, auditors
and contracting officers should not make assumptions about the
good faith of a contractor. Investigators should examine the
issue of intent. Prosecutors are likely to pursue cases where
intent is established even though no substantial loss Occurs
particularly where the contractor has actively sought to

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Under cost type contracts, the Government reimburses the
contractor's costs which are allowable, allocable to the
contract and reasonable. These types of contracts include cost
plus fixed fee, cost plus incentive fee, cost plus award fee,
cost reimbursable and cost sharing contracts. In addition,
contract changes and equitable adjustments to contracts are
reimbursed on the basis of incurred costs even on fixed price
contracts. Cost mischarging Occurs whenever the contractor
charges the Government for costs which are not allowable, not
reasonable, or which cannot be directly or indirectly allocated
to the contract.

The DAR 15-205 (FAR 31.205) identifies costs which are
allowable and those which cannot be charged to Government
contracts. Such costs may be direct costs, such as labor and
materials used on one contract and no other, or indirect costs,
which contribute to a number of different contracts. Indirect
Costs are placed in "cost pools" which are then allocated to

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