Competition Matters
Media > Newsletters > Competition Matters > April 2018 > Non-Collusion Affidavits: More than Filler for Your Bid Files

Competition Matters Competition Matters RSS feeds

Non-Collusion Affidavits: More than Filler for Your Bid Files

Non-collusion affidavits serve valuable purposes and should be an integral part of every bid project file. In these sworn statements, a vendor confirms that it has not colluded with any other vendors in preparing the bid.

Non-collusion affidavits benefits fall into three general categories:

Many bidders of various sizes are aware that collusion with competitors in the preparation or submission of a bid is illegal. However, some small companies and sole proprietors may not know that agreeing with one’s competitors on price (or any other terms of sale) is a violation of state and federal antitrust laws.
If reading and signing a non-collusion affidavit informs even one potential bidder that all bids must be made independently, the document has served a valuable purpose. The result will be a better-informed pool of bidders and more successful competitive solicitations.

An affidavit can also help remind potential conspirators that they are required to swear to the truth of the document. Lying can carry criminal penalties. Falsification, making an intentionally false statement sworn to before a notary public, is a first-degree misdemeanor under Ohio Revised Code Section 2921.13(A)(6)

A fully executed non-collusion affidavit can also be a valuable tool in holding wrongdoers accountable and securing a remedy for the harm they cause. It can be used in criminal prosecution or civil litigation against such a party.

First, a charge of falsification can be effectively combined with charges for violation of antitrust laws to strengthen a criminal case. Second, in the event the just-discovered illegal activity has been occurring for a significant period of time, the Attorney General or other counsel bringing civil antitrust claims may face statute of limitations problems. (Under Ohio law, the statute of limitations for recovery of damages on antitrust claims is four years.) However, courts often grant relief from the running of a statute of limitations when a party has engaged in fraudulent concealment of its unlawful acts. An intentionally false non-collusion affidavit can be an extremely valuable piece of evidence in establishing fraudulent concealment.

While some may consider requiring non-collusion affidavits as yet another item on a long list of items that a public entity has to keep on file, these documents serve multiple positive functions, ultimately making the market more competitive for Ohio taxpayers. As such, organizations should ensure non-collusion affidavits are a part of every bid package.