BTF1010 Study Guide - Final Guide: Independent Business, Bid Rigging, Rigging
6 Jun 2018
School
Department
Course
Professor
PART IV DIVISION 1 S44ZZRA
BID-RIGGING AGREEMENTS (DIVISION 1 – CRIMINAL)
Cartel provision is illegal:
1. Is there a contract agreement or understanding?
2. Is the agreement between competitors?
3. Does the agreement have the purpose of ensuring bid-rigging
S44ZZRD(3)(c) defines a cartel provision to include a provision of a contract, arrangement,
or understanding made between competitors that has the purpose of ensuring that:
• One or more parties bid and the other parties do not bid
• Two or more parties bid, but on the basis that one is more likely to succeed
• Whilst all parties bid, some will pull out or not finalise their bids
o S44ZZRD – Price fixing
o S44ZZRD(3)(a) – Output restrictions
o S44ZZRD(3)(b) – Market sharing
o S44ZZRD(3)(c) - Bid Rigging
Bid is wide and includes a bid or tender, and any preliminary step taken by a potential
participant in a bidding or tendering process: S44ZZRB
Bid rigging – Suppliers communicate before lodging their bids and agree among themselves
who will win and at what price.
à
Element 1: Contract, agreement or understanding
• Contract: Legal meaning
• Arrangement or understanding: Where it’s not legally enforceable E.G. Discussion
over drinks
• Understanding need to show a meeting of minds that parties have communicated to
each other and intentionally aroused an expectation in the mind of others which
Document Summary
Cartel provision is illegal: is there a contract agreement or understanding, is the agreement between competitors, does the agreement have the purpose of ensuring bid-rigging. Bid is wide and includes a bid or tender, and any preliminary step taken by a potential participant in a bidding or tendering process: s44zzrb. Bid rigging suppliers communicate before lodging their bids and agree among themselves who will win and at what price. Element 1: contract, agreement or understanding: contract: legal meaning, arrangement or understanding: where it"s not legally enforceable e. g. Element 2: between competitors: cooperation where two or more competitors are working together, competition must be over goods and services that are subject to the exclusionary provision competition and consumer act s4d(2) Direct evidence does not always exist therefore courts have to look at circumstantial evidence. Look at issues such as: uniformity; how long uniformity continuous, time lag between changes, can the conduct be explained by independent business justifications.
