Fraud in Major Contract Projects

Bid Rigging

The Office of Fair Trading in the United Kingdom fined 103 construction firms a total of £129 million in 2009 for colluding with competitors on building contracts. The vendors employed a common scheme referred to as a "cover price," in which vendors submit artificially high bids ostensibly as fair offers, priced so that they do not intend to win the business. One agreed-upon vendor submits a bid priced substantially below the cover bids, thus winning the business. ¹

From there, the winning vendor might pay a commission to the bid losers, subcontract some of the work to one of those firms, or agree to issue a cover bid on the next project which comes up for those firms. In the meantime, your firm pays a higher price because of the uncompetitive bid situation.

In the United States, bid rigging and price fixing are criminal violations of the Sherman Act, the violation of which can result in massive fines on top of restitution to victims, along with possible jail time.

The sealed bid process is the primary control used by organizations to protect the integrity of vendor bidding. However, this control fails to account for collusion among the potential vendors to rig the bids.

If your company regularly puts projects out to bid, your key step in detecting the symptoms of bid rigging is to perform a bid analysis and seek patterns within the winning bids. Symptoms of bid rigging revealed in a bid analysis include:

• The last bid is always the low bid.
• A particular organization always wins projects within a particular geography.
• A particular organization always wins projects within a particular service type.
• Losing bids were significantly higher than what the project and market would dictate.
• Bid prices among regular vendors drop if a new or infrequent bidder enters the process.
• The winning bidder often subcontracts some work to a losing bidder.

Besides maintaining the integrity of your sealed bid process, your company can avoid becoming a victim of bid rigging by opening the bid process to many vendors; the more bidders, the more complicated a bid rigging scheme must become to succeed.

Also, restrict the vendors' familiarity with your bidding process. Though project managers and procurement personnel consider it a perk to attend sporting events in corporate suites, these are the environments in which your personnel will reveal critical information to your suppliers about internal controls and processes, thus enabling their circumvention.

Kickbacks

Many kickbacks are notoriously difficult to prove because all such schemes involve collusion and often lack a paper trail because cash or other favors were exchanged between the parties. However, many symptoms still exist that allow you to detect and prevent kickbacks from affecting your construction projects.

In 2007, the State of Ohio Office of the Inspector General named its facilities manager as a participant in a kickback scheme with preferred vendors. The manager received free out-of-state fishing and hunting trips accompanied by strippers, membership at a private golf club, discounted services at his home, and other gifts, in exchange for him steering contracts to vendors who provided such gifts. ²

In a much larger case symptomatic of widespread corruption among executives, Siemens was fined a total of $1.6 billion by the U.S. Department of Justice, Securities and Exchange Commission, and German authorities for bribes paid to foreign governments to obtain infrastructure work. These bribes and kickbacks included $19 million paid to Venezuelan officials in exchange for favorable treatment in connection with mass transit projects and $2 million to Iraqi bureaucrats in exchange for receiving favorable contracts under the United Nations' Oil-for-Food Program. Such payments violate, among other laws, the U.S. Foreign Corrupt Practices Act. ³ Authorities charged multiple Siemens executives criminally.

Obviously, in situations such as the Siemens case, if you are employed by a company led by executives who condone the distribution of bribes and other "facilitating payments," your task of implementing controls within the organization to prevent such activity may be nearly impossible. However, this does not mean you should participate in the cover-up. Your primary task may be to educate your managers about the fines and penalties assessed to other companies, make them aware of the risks, and document your attempts to oppose the practice of paying bribes and kickbacks.

To detect and prevent an occurrence like in Ohio, where bribes and kickbacks to employees are corrupting procurement, the key process or control involves delving into vendor records and seeking evidence of payment to your personnel.

It is your prerogative to conduct a vendor audit if the original contract includes a right to audit clause, which is a standard inclusion for large projects. During the vendor audit, look through expense reports of vendor employees for evidence of gifts or trips provided to your personnel. You might also search for checks cut directly to someone in your organization or evidence of materials delivered to the home of one of your employees.

Why would the vendor maintain such evidence? It would do so to expense the items for tax purposes and to determine the true profitability of the job. Why would they show you such documents? First, vendors do not often believe an auditor will find them. Second, if they do not properly support all of their disbursements, they may risk violating their contract, and thus lose your company's business. The contractor's executives generally have no problem forcing your or their corrupt employee to take the fall so the vendor can keep your business.

Product Substitutions and Substandard Performance

As you have driven past thousands of road stripes in your life, have you ever wondered how long those stripes are supposed to be? Eight feet? How much could a contractor save in epoxy paint over 200 hundred miles of 3-lane highway if they made all of the stripes 7 feet by 11½ inches? Good construction managers know the answer.

On November 14, 2006, the U.S. District Court in Missoula, Montana, ordered a highway paint contractor to pay $200,000 to settle false claims stemming from overstating the quantity of epoxy paint used on federally funded highway striping projects around the state. An OIG investigation found that the Montana Department of Transportation was overbilled by approximately $697,000. ⁴

Material shortages and substitutions allow for contractors to underbid competitors, yet still turn nice profits. However, their profits are irrelevant to you as their customer; your risk resides in poor quality construction and potentially unsafe facilities.

Painting a shorter stripe on a highway likely does not cause roads to become unsafe; consider, though, a contractor who substitutes 1½-inch steel rebar in a concrete construct which requires 2-inch rebar. Substandard performance is said to have caused fatal accidents in the 2006 ceiling collapse in Boston's Big Dig tunnel and in the 1996 ValuJet crash outside of Miami.

Conclusion

Your key task in preventing substandard work is attention to detail during the entire construction process. If the contract specs call for Grade 316 stainless steel, verify the contractor did not substitute Grade 304, either by direct observation or by reviewing the contractor's invoices from their steel supplier.

Measure a sample of stripes along the road. Calculate the volume of airflow through HVAC ducts installed. Compare your measurements, calculations, and observations to specifications and building codes.

Perpetrators operate best in the dark, and so your very presence on the project grounds or in their office will deter much fraud, especially if they know you understand the symptoms of wrongdoing and seek them out.