2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 10 - Offenses Against Public Administration
Article 2 - Obstruction of Public Administration and Related Offenses
§ 16-10-22. Conspiracy in Restraint of Free and Open Competition in Transactions With State or Political Subdivisions; Forfeiture of Right to Bid on or Enter Into Contracts

1. A person who enters into a contract, combination, or conspiracy in restraint of trade or in restraint of free and open competition in any transaction with the state or any agency thereof, whether the transaction is for goods, materials, or services, shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years. The crime of conspiracy in restraint of free and open competition in transactions with the state shall be complete when the contract, combination, or conspiracy is effected and an overt act in furtherance thereof has been committed.
2. A person who enters into a contract, combination, or conspiracy in restraint of trade or in restraint of free and open competition in any transaction with a political subdivision or any agency thereof, whether the transaction is for goods, materials, or services, shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years. The crime of conspiracy in restraint of free and open competition in transactions with political subdivisions shall be complete when the contract, combination, or conspiracy is effected and an overt act in furtherance thereof has been committed.
3. A person who is convicted of or who pleads guilty to a violation of subsection (a) or (b) of this Code section as a result of any contract, combination, or conspiracy in restraint of trade or in restraint of free and open competition in any transaction which was entered into or carried out, in whole or in part, on or after July 1, 1985, shall be ineligible to submit a bid on, enter into, or participate in any contract with any department, agency, branch, board, or authority of the state or any county, municipality, board of education, or other political subdivision thereof for a period of five years following the date of the conviction or entry of the plea.

(Ga. L. 1959, p. 34, § 6; Ga. L. 1964, p. 261, § 6; Code 1933, § 26-2308, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1985, p. 1184, § 1.)

- Prohibition against contracts and agreements to defeat or lessen competition or encourage monopoly, Ga. Const. 1983, Art. III, Sec. VI, Para. V.

Purchase by state of supplies, materials, and other items generally, § 50-5-50 et seq.

- For article, "Antitrust," see 44 Mercer L. Rev. 1047 (1993).

Phrase "restraint of trade" means restraint of competition. State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981).

§ 16-10-22 prohibits unreasonable restraints of competition. - Prohibition against "a conspiracy in restraint of trade or in restraint of free and open competition" means simply a prohibition against a conspiracy in unreasonable restraint of competition. State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981).

O.C.G.A. § 16-10-22 bans only that speech by which individuals conspire to create unreasonable restraint against competition that is, only that speech which constitutes a clear and present danger of a substantive evil which the state may avoid. State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151, cert. denied, 454 U.S. 1055, 102 S. Ct. 601, 70 L. Ed. 2d 591, appeal dismissed, 454 U.S. 1074, 102 S. Ct. 626, 70 L. Ed. 2d 609 (1981).

- Decision of private hospital operating for profit to change bylaws so as to allow only doctors eligible for membership in the American Medical Association or American Dental Association (AMA or ADA) to obtain medical staff privileges, thus denying defendants continued staff privileges because they were doctors of podiatric medicine ineligible for membership in the AMA or ADA, was neither state nor federal action subject to scrutiny under the due process or equal protection clauses of the federal Constitution; nor did it constitute a restraint of trade in violation of O.C.G.A. § 16-10-22 merely because the hospital derived 55 percent of its income from federal medicaid and medicare funds, was licensed by the state, and was regulated as a certified provider under the medicare and medicaid programs. Todd v. Physicians & Surgeons Community Hosp., 165 Ga. App. 656, 302 S.E.2d 378 (1983).

- Attorney's conviction upon guilty plea under O.C.G.A. § 16-10-22(a) warranted acceptance of petition for voluntary surrender of license to practice. In re Matthews, 249 Ga. 586, 293 S.E.2d 716 (1982).

O.C.G.A. § 16-10-22 did not apply in civil action involving private dispute between a nurse-midwife and two groups of physicians, where the plaintiff's allegations did not involve any transactions with the state. Sweeney v. Athens Regional Medical Ctr., 709 F. Supp. 1563 (M.D. Ga. 1989).

- State argued that O.C.G.A. § 17-3-1(c), the four-year statute of limitation for conspiracy in restraint of free and open competition and O.C.G.A. § 16-10-22, was tolled under O.C.G.A. § 17-3-2(2) until the state learned of the conspiracy. The defendants' pleas in bar were properly granted as the evidence was sufficient to establish that a defendant's supervisor, a state employee, was aware of the crimes over four years before the defendants were indicted, and the supervisor's knowledge was imputed to the state. State v. Robins, 296 Ga. App. 437, 674 S.E.2d 615 (2009).

Cited in Ken Stanton Music, Inc. v. Board of Educ., 227 Ga. 393, 181 S.E.2d 67 (1971).

RESEARCH REFERENCES

Am. Jur. 2d.

- 54 Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, § 46 et seq. 54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices, §§ 773 et seq., 789.

- 15A C.J.S., Conspiracy, § 291 et seq.

- Conspiracy or combination to prevent actual competition in bids for public work as affecting contract for the work or recovery therefor, 62 A.L.R. 224.

Removal or attempted removal of one from field of competition by inducing him to enter another's employment as violation of anti-monopoly act, 74 A.L.R. 289.

Operation of negative or restrictive covenant in contract of employment for a specific period, as extended by continuance in the employment after the expiration of that period, 163 A.L.R. 405.

When does statute of limitations begin to run against civil action or criminal prosecution for conspiracy, 62 A.L.R.2d 1369.

Validity, construction, and effect of real-estate brokers' multiple-listing agreement, 45 A.L.R.3d 190.

Criminal liability of corporation for bribery or conspiracy to bribe public official, 52 A.L.R.3d 1274.

Application of state antitrust laws to activities or practices of real-estate agents or associations, 22 A.L.R.4th 103.