FAR 3.303—Reporting suspected antitrust violations.
Plain-English Summary
FAR 3.303 tells agencies how to handle suspected antitrust violations in federal procurement. It implements the statutory duty under 41 U.S.C. 3707 and 10 U.S.C. 3307 to report bids or proposals that appear to evidence violations of the antitrust laws, and it makes clear that these reports are separate from the responsibility-related referrals required under FAR subpart 9.4. The section explains the policy basis for the rule: antitrust laws are meant to preserve competition, and agreements or understandings among competitors that distort market forces are suspect. It then lists common warning signs of collusion, including industry price lists, sudden shifts from competitive to identical bidding, simultaneous price increases, bid rotation, market division, collusive estimating systems, joint bids where one firm could perform alone, suspiciously identical errors or proxy submissions, and statements by employees or competitors alleging restraint of trade. It also addresses identical bids, foreign contractor offers for work performed outside the United States, the required contents and address for agency reports to the Department of Justice, and the availability of direct telephone contact with the Antitrust Division for questions. In practice, this section is a reporting and escalation rule: contracting personnel do not decide antitrust guilt, but they must recognize red flags, document the basis for suspicion, and promptly notify the proper authorities through agency procedures.
Key Rules
Report suspected antitrust bids
Agencies must report to the Attorney General any bids or proposals that evidence a violation of the antitrust laws. This reporting duty is mandatory and is separate from any responsibility referrals under FAR subpart 9.4.
Competition is the baseline
The section reflects the principle that markets should operate competitively and that agreements or mutual understandings among competing firms that restrain competition are suspect. The rule is aimed at identifying conduct that may indicate collusion, not at penalizing normal competitive behavior.
Recognize collusion indicators
FAR 3.303(c) lists practices and events that may evidence antitrust violations, including price lists or price agreements, identical bidding after a competitive history, parallel price increases, bid rotation, market division, collusive estimating systems, joint bids by capable competitors, suspiciously identical errors or proxy submissions, and allegations from employees or competitors.
Identical bids need suspicion
Identical bids must be reported when the agency has some reason to believe the identical pricing resulted from collusion. Identical numbers alone are not enough; there must be a factual basis suggesting coordinated conduct.
Foreign offers may be referred abroad
For foreign contractors offering to perform work outside the United States and its outlying areas, contracting officers may refer suspected collusive offers to the appropriate foreign government authorities for action. This is permissive, not mandatory, and depends on the circumstances and agency procedures.
Use the required DOJ report format
Agency reports must be sent to the Attorney General, U.S. Department of Justice, Antitrust Division, Washington, DC 20530, Attention: Assistant Attorney General. The report must include a brief description of the suspected practice and why it is suspicious, plus the name, address, and telephone number of an agency contact for follow-up.
Questions go to Antitrust Division
Questions about the reporting requirement may be directed by telephone to the Office of the Assistant Attorney General, Antitrust Division. This gives agencies a direct channel for procedural clarification when a potential antitrust issue arises.
Responsibilities
Agency
Identify bids or proposals that may evidence antitrust violations, follow agency reporting procedures, and submit required reports to the Department of Justice. The agency must also ensure the report contains the required narrative and contact information and treat these reports as separate from responsibility determinations under FAR subpart 9.4.
Contracting Officer
Watch for the listed collusion indicators, document the facts supporting suspicion, and initiate or route the matter for reporting under agency procedures. The contracting officer may also refer suspected collusive foreign offers to the appropriate foreign government authorities when the contract is to be performed outside the United States and its outlying areas.
Department of Justice, Antitrust Division
Receive agency reports of suspected antitrust violations and provide a point of contact for questions about the reporting requirement. The Antitrust Division is the federal authority to which agencies report suspected violations.
Contractors and Offerors
Compete independently and avoid any agreement, understanding, or coordinated conduct with competitors that could restrain trade or distort bidding. Contractors should also be aware that suspicious patterns, joint bids, or identical submissions may trigger government scrutiny and reporting.
Agency Contact Person
Serve as the point of contact named in the report and be available to provide additional information to the Department of Justice if needed.
Practical Implications
This section is a red-flag rule, not a final determination of wrongdoing: contracting personnel should report suspicious patterns even when they cannot prove collusion.
Many of the listed indicators can have innocent explanations, so the key is whether the facts create a reasonable suspicion that warrants notification, not whether the agency has enough evidence to prosecute.
Identical bids are especially sensitive; agencies should look for surrounding facts such as identical errors, unusual pricing patterns, or other coordination indicators before deciding to report.
Because the reporting duty is separate from responsibility determinations, agencies should not treat a responsibility review as a substitute for antitrust reporting.
Good documentation matters: the report should clearly explain what was observed, why it seemed suspicious, and who can answer follow-up questions, so DOJ can quickly assess the matter.
Official Regulatory Text
(a) Agencies are required by 41 U.S.C.3707 and 10 U.S.C. 3307 to report to the Attorney General any bids or proposals that evidence a violation of the antitrust laws. These reports are in addition to those required by subpart 9.4 . (b) The antitrust laws are intended to ensure that markets operate competitively. Any agreement or mutual understanding among competing firms that restrains the natural operation of market forces is suspect. Paragraph (c) of this section identifies behavior patterns that are often associated with antitrust violations. Activities meeting the descriptions in paragraph (c) are not necessarily improper, but they are sufficiently questionable to warrant notifying the appropriate authorities, in accordance with agency procedures. (c) Practices or events that may evidence violations of the antitrust laws include- (1) The existence of an "industry price list" or "price agreement" to which contractors refer in formulating their offers; (2) A sudden change from competitive bidding to identical bidding; (3) Simultaneous price increases or follow-the-leader pricing; (4) Rotation of bids or proposals, so that each competitor takes a turn in sequence as low bidder, or so that certain competitors bid low only on some sizes of contracts and high on other sizes; (5) Division of the market, so that certain competitors bid low only for contracts awarded by certain agencies, or for contracts in certain geographical areas, or on certain products, and bid high on all other jobs; (6) Establishment by competitors of a collusive price estimating system; (7) The filing of a joint bid by two or more competitors when at least one of the competitors has sufficient technical capability and productive capacity for contract performance; (8) Any incidents suggesting direct collusion among competitors, such as the appearance of identical calculation or spelling errors in two or more competitive offers or the submission by one firm of offers for other firms; and (9) Assertions by the employees, former employees, or competitors of offerors, that an agreement to restrain trade exists. (d) Identical bids shall be reported under this section if the agency has some reason to believe that the bids resulted from collusion. (e) For offers from foreign contractors for contracts to be performed outside the United States and its outlying areas, contracting officers may refer suspected collusive offers to the authorities of the foreign government concerned for appropriate action. (f) Agency reports shall be addressed to the- Attorney General U.S. Department of Justice Washington DC 20530 Attention: Assistant Attorney General Antitrust Division and shall include- (1) A brief statement describing the suspected practice and the reason for the suspicion; and (2) The name, address, and telephone number of an individual in the agency who can be contacted for further information. (g) Questions concerning this reporting requirement may be communicated by telephone directly to the Office of the Assistant Attorney General, Antitrust Division.