Reporting a Competitor’s Foreign Bribery: What a Lost Tender Can Reveal

You can report competitor foreign bribery using evidence that connects a tender decision to an official’s benefit and the records behind it. Your bid, the product specifications and a conversation you took part in may reveal how the competition was steered. We work with you to connect that commercial knowledge to the payments, people and decisions that make a whistleblower case worth pursuing.

Foreign Bribery Evidence After a Lost Tender

A competitor who lost a tender may hold foreign bribery evidence in the ordinary records of competing for the business. The useful connection is between what the buyer asked for, who influenced the decision and what that person stood to receive. A sales or technical employee can recognize a change in specifications that someone unfamiliar with the product would miss.

We examine your bid documents, product specifications and scoring criteria alongside your account of conversations you took part in. Independent analysis can also connect public documents and commercial knowledge to reveal information not generally known.

The commercial roles matter just as much. An agent may arrange introductions, a reseller may set the customer price, finance may approve a commission, and an official may control the award. Those decisions can sit in different companies and countries. Your knowledge of the customer or product can connect parts of a transaction that appear unrelated on separate invoices.

How Tender Bribery Appears in the Records

Tender bribery can operate through the specifications, the choice of intermediary or the money retained between supplier and customer. The following cases show the particular records behind those arrangements. Each gives a competing bidder something more concrete to recognize than the fact that somebody else won.

The Bidder Helped Write the Scoring

In the Fresenius Medical Care action, the Securities and Exchange Commission alleged that the company’s Spanish business supplied a public-hospital doctor with proposed tender specifications and scores. Its administrative order described the exchange this way:

The alleged advantage reached into the way the hospital would judge the offers. We see a bidder helping write the test it wanted to win. For a competing supplier, the technical requirements and scoring methodology are therefore part of the financial story, alongside the communications with the person influencing them.

In a separate tender in Brcko, the same order alleged that a consulting arrangement moved into a doctor’s wife’s name after the doctor became mayor. Fresenius allegedly paid the doctor more than $1.3 million to win the bid. A procurement employee and someone handling the consulting account could know different parts of the same arrangement.

The Consultant’s Account Belonged to an Official

The Commission’s order concerning Deere alleged that Wirtgen Thailand used a consultant to channel bribes for four machine-sale tenders worth approximately $4.67 million. According to the order, the consultant provided no legitimate services. The commission agreements supplied the paperwork for the payments.

One agreement contained payment instructions naming a senior highway official as the account holder. The Commission also alleged that officials who signed a tender had received improper entertainment from Wirtgen Thailand. The connection was unusually direct: the commission record identified an official, and the tender identified officials involved in the purchase.

For someone selling the same machinery, the useful commercial questions concern what the consultant actually did and how that work related to the award. We examine those questions with the engagement, payment instructions and decision-making roles together. The label on the invoice tells only part of the story.

An Official Threatened to Favor a Competing Bid

The Securities and Exchange Commission’s complaint against Embraer alleged that the head of a Mozambican state-owned enterprise demanded a payment through an agent during aircraft negotiations. The official allegedly suggested a $1 million payment, then said Embraer could pay $800,000. He threatened to give a competing bid priority.

Even the alleged bribe came with a lower price, with a rival’s bid used as leverage. The official connected the requested payment to the treatment of rival bids. Someone who participated in such a conversation may know what the official wanted and which decision the payment was intended to influence, even without seeing the eventual bank transfer.

A Customer Discount Became Money for Improper Payments

Microsoft Hungary’s criminal non-prosecution agreement describes another way to finance the advantage. Under that agreement, the company admitted that employees falsely justified discounts as necessary for government sales while resellers retained margins for improper payments. The approved discount, the reseller’s margin and the final customer price were different parts of the transaction.

The Commission’s separate order concerning Microsoft alleged that employees at the Hungarian subsidiary tracked an inflated vendor margin on a spreadsheet. It also recorded why employees resisted replacing the vendor:

Staff questioned the vendor’s competence while tracking its inflated margin. The Commission alleged that retained discounts also funded improper payments to relaunch a government tender. A competitor may know the customer, competing offer and tender history, while a channel employee knows the discount approval or retained margin. We connect those perspectives to examine where the price difference went and what decision it helped buy.

What Makes a Competitor’s Information Useful?

A competitor’s information can help an agency by revealing a transaction, identifying a witness or explaining a commercial record it has not understood. The Commission’s original-information and contribution rule recognizes independent knowledge and analysis, including information that significantly contributes to an existing investigation. Someone outside the target company can bring that knowledge.

Can an Existing Investigation Still Use My Information?

Yes, information can significantly contribute to the success of an existing investigation. New transaction details, records or witnesses can give investigators something they can act on. We look at what your knowledge adds to the specific investigation.

TIGO Guatemala’s criminal deferred prosecution agreement provides a concrete example of outside evidence changing an investigation. In the agreement, the Justice Department said it obtained and developed new evidence from sources outside the company and its parent, Millicom, and reopened its investigation on that basis.

What a Whistleblower Reward Recognizes

The SEC’s whistleblower program rewards eligible individuals who voluntarily supply original information leading to successful enforcement. An eligible SEC whistleblower reward can be 10% to 30% of qualifying monetary sanctions collected, with the covered action requiring more than $1 million in ordered sanctions. The program recognizes the individual’s contribution even when the commercial knowledge comes from working for a competing business.

We build the evidence around the transactions your information helps explain and stay with you through the award claim. That includes connecting your commercial knowledge, later documents and substantive assistance to the action they helped advance.

A whistleblower case under the False Claims Act can pay 15% to 30% of what the government recovers. Foreign bribery reporting follows a different framework: the Foreign Corrupt Practices Act itself provides no private whistleblower lawsuit, and the agencies pursue enforcement.

Does My Competitor Have to Be a U.S. Company?

No. The Foreign Corrupt Practices Act can reach foreign companies with U.S. securities registration or reporting obligations, as well as U.S. businesses. We examine the company’s U.S. connections alongside the tender, the payments and the people involved.

The Justice Department’s foreign bribery whistleblower awards program also covers company-related wrongdoing beyond the Commission’s reach. We work with you on which program fits the conduct you know about and bring in whistleblower lawyers who understand foreign bribery and cross-border transactions.

Can I Report If I Am Outside the United States?

Yes, the SEC receives whistleblower information from people outside the United States, and overseas individuals can qualify for awards. For a competitor, the discussion also needs to account for where the bid records and communications sit. We work with you and foreign bribery whistleblower lawyers on cross-border evidence questions and any concerns about anonymity.

Put Your Knowledge of the Tender to Work

If you know how an official, consultant or reseller influenced the contract your business lost, speak with our whistleblower experts about that tender. We build the case with you around the commercial facts you understand, bring in FCPA whistleblower lawyers who know cross-border payment schemes, and stay beside you through the process.