04/30/ at p.m.; Recorded on April 30, , p.m.. 9 views. Materiais. Description. Estudo do decreto / Category Education. Show more. , de 12 abril , D.O.R.J., de [hereinafter Decreto No. ]. It S.A. (Petrobras), the company created in to carry out the activities of the monopoly.7 .. , de 24 de agosto de , D.O.U., de That is really no improvement from the prior standard, where Petrobras had the right by regulation (i.e., Decreto 2, of , see ) to.
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Said law regulates both the public procurement proceedings themselves and the agreements for the acquisition of goods and services by the Public Administration. It also regulates the proceeding for the sale of publicly-owned goods and establishes certain crimes and administrative penalties.
The RDC is applicable exclusively to procurements for: The administrative improbity act is defined as illegal behaviour of public agents that results in unjust enrichment or undue advantage, to themselves or to a third party, which causes damage to a public asset or violates the principles of the Public Administration. Although initially the penalties are applied to public agents, they may be extended to third parties that collaborated or induced the practice of an administrative improbity act.
As mentioned in question 1. However, the rules set forth in international agreements, protocols, covenants or treaties approved by the Brazilian National Congress are also applied to the performance of construction works, rendering of services or acquisition of goods funded by resources from financing or donations made by international cooperation agencies or multilateral financial organisations to which Brazil is a party. The preference margin mentioned in question 1. All acts performed by public entities must be in compliance with the principles set forth by article 37 of the Brazilian Federal Constitution.
Regarding the specific case of agreements, since the main purpose of public procurement proceedings is to assure the compliance of the principle of equality and select the most advantageous tender made to the Public Administration, in both technical and economic aspects, article 3 of the PPL, which sets forth that principles of equality, honesty, abidance by the bid document, sustainable national development, objective judgment and other related principles, such as the lowest-price principle, must also be considered.
These principles are of the utmost importance when interpreting the rules of the PPL. The CI-CP received the attribution of proposing and monitoring the application of the preference margin for national manufactured products and services, as well as the commercial, industrial and technological compensation measures, among other competences. Since it could be argued that the preference margin rule is not compatible with the principle of equality among bidders, this may result in challenges to its application in the future.
Brazilian Congress has recently enacted Federal Law 12, dated as of March 22,which provides for special rules on the procurement, product development, as well as incentives for the Brazilian defence sector. To be qualified as an EDD, the company must have the purpose of developing activities related to the defence sector.
The PPL is still applicable on a subsidiary basis to public procurement proceedings carried out by the governmental agencies belonging to the defence sector, as well as fully applicable for the agreements resulting from these proceedings.
The PPL provides exceptions to the obligation of performing a public procurement proceeding and, therefore, admits the direct contracting for the acquisition of goods and services in cases of: As a rule, governmental agreements shall be in force for a month term, but the PPL entitles the armed forces to execute agreements with a month term in some cases of direct procurement. The PPL and other laws mentioned in question 1. Direct Public Administration comprises State Secretariats, Ministries and other governmental bodies without legal personality subordinated to the Executive Branch Chief.
Indirect Public Administration comprises autonomous governmental agencies, regulatory agencies, public foundations, public consortia, public companies and mixed-capital companies.
Even though public companies and mixed-capital companies are also subject to private legal regimes, they are directly or indirectly controlled by governmental entities Federal Government, States, Federal District and Municipalities and, thus, considered as public entities.
Nevertheless, article of the Brazilian Federal Constitution allows public companies and mixed-capital companies that develop economic activities to have their public procurement proceedings regulated by a specific law. However, since this law is yet to be enacted by the Brazilian National Congress, said entities are still subjected to the PPL.
An exception is made for Petroleo Brasileiro S. Rules set forth by the PPL are also applied to Judiciary and Legislative bodies in relation to agreements for the purchase of goods and services, which are considered agreements of a government nature.
Furthermore, States, the Federal District and Municipalities may also enact their own laws and rules on public procurement proceedings, as long as they do not conflict with or modify the content of the PPL.
Private companies are only required to follow the PPL when supplying goods or rendering services to public entities.
The PPL regulates the execution of government agreements for the purchase of goods or the rendering of services to Public Administration entities, as well as agreements for the sale of publicly-owned goods and assets. However, before starting public procurement proceedings the relevant contracting entity shall assess whether the public disbursements under the contract are in compliance with their budget allocation established in the Budget Law, which is approved by the Brazilian Congress on an annual basis.
Should the public disbursements surpass the fiscal year January, 1 through December, 31 they shall also be in compliance with the Multi-year Government Plan, which is valid for a four-year term.
The PPL provides for threshold values to define the types of public procurement proceedings that should be followed by the contracting entities and also the circumstances in which the procedure is dismissed, as further detailed in question 3.
The PPL also establishes time limits for the term of government agreements. As a rule, the term of these agreements is limited to the existence of budget resources within the Brazilian Government’s financial year. Exceptions to this rule include agreements for the rendering of services with ongoing execution, construction works, projects included in the Multi-year Government Plan, among others cases. In this regard, the Public Administration must organise its agreements in order to avoid illegalities when choosing the type of public procurement proceeding, which can cause said proceeding and the subsequent administrative agreement to be declared null and void.
These general rules are regulated by supplementary laws for different sectors of infrastructure. Invitation to Bid Convite: In general, such type of public procurement proceeding is not applied when the Public Administration procures works and engineering services, since they are complex services and cannot be specified through usual market definitions.
The RDC was enacted in an attempt to expedite the public procurements necessary for the upcoming sporting events Brazil will host, as mentioned in question 1.
As a rule, the public procurement proceeding is split in different phases, which take place in accordance with the following order: Public consultation and public hearings of the drafts of bid documents are also required before the commencement of the bidding process depending on the nature of the procurement scope and the amounts involved.
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Technical proposals are usually required for more complex procurements and not applicable for the procurement of goods and services of low complexity. Public procurement proceedings carried out through Live Actions do not have this phase. The order of the phases for qualification and analysis of proposals are inverted in Live Auction proceedings, as well as in the bidding processes carried out in accordance with the RDC rules.
These phases can also be inverted in public procurement proceedings for concessions and private-public partnership projects. In these cases, the price proposals are analysed by the Bidding Committee firstly. The Bidding Committee checks only the technical proposals, when applicable, and qualification documents of the bidder that submitted the best price proposal. The aforementioned types of public procurement proceedings and the circumstances in which they must be adopted by the Public Administration are expressly provided by law.
Competitive Bidding, Request for Quotation and Invitation to Bid must be necessarily applied to agreements regarding civil works, engineering services and other complex works, and the choice between them shall be made based on the work’s value.
On the other hand, the choice between Contest Bidding, Auction and Live Auction results solely from the nature of the relevant object, regardless of value. The choice between different types of public procurement proceeding does not lie at the sole discretion of the Public Administration and will vary according to the complexity and value of the agreement, which requires a case-by-case analysis.
The more complex the object of the agreement, the more complex the procedure that must be carried out by the Public Administration. The government contracting entities are subject to minimum timescales for publishing the request for tenders, which vary in accordance with the type of public procurement proceeding.
In a competitive bidding, the request for tenders shall be published at least 45 days before the date scheduled for tender submission. The more complex the procured scope and the higher the amounts involved, the longer the periods granted to bidders for the preparation of tenders. However, upon the tender submission, there are no legal timescales established for the conclusion of the bidding process.
The government contracting authorities take their time to analyse tenders. Article 3 of the PPL requires the Public Administration to perform a public procurement proceeding before entering into agreements, to ensure compliance with the principle of equality and to sort the most advantageous tender. In this regard, said rule expressly prohibits the admission, inclusion or provision in the bid document of rules that compromise, restrain or hinder the competitive aspect of the proceeding.
Preference of bidders due to their nationality, head office or domicile location, as well as any other irrelevant circumstances with regard to the assets or services to be acquired, are expressly forbidden.
If applicable to a particular proceeding, however, the preference margin granted to Brazilian products and petrobra shall be taken into account please see question 1.
A principle to be observed is that of the widest participation of interested parties in the proceeding. The inclusion in the bid document of clauses or rules that restrain decretl participation of interested parties is only accepted when such restriction is pertinent and suitable to the object of the public procurement proceeding. Decreho to article 27 of the PPL, the qualification of interested parties in the proceeding shall be made through dcereto evidencing their legal standing, technical qualification, economic and financial qualification, as well as fiscal and labour regularity.
In addition, documents proving that the interested parties do not employ workers younger than 18 years old in night shifts and dangerous or hazardous activities, as well as workers younger than 16 years old in any position, except for apprentices, are also required.
The judgment of tenders shall be straight and objective, pwtrobras on criteria established in the bid document, as well as the following: For the procedures carried out in accordance with the RDC rules, the judgment of tenders can also be processed by the criteria of the highest discount or highest economic return for the government contracting entity.
If applicable to a particular proceeding, the preference margin granted to Brazilian products and services shall also be taken into account please see question 1.
Once the public procurement proceeding is performed, after the judgment of the tenders, the object of the proceeding shall be awarded to the winner of the competition, i.
– Petrobras – Julho
The winner acquires the right to enter into a government agreement with the Public Administration, and any changes in the qualifying order of the bidders are expressly forbidden. The judgment of tenders must be objective, based on the judgment criteria established in the request for tenders and the law. The Bidding Committee cannot decide on the winning bidder or on debriefing bidders at its sole discretion or based on criteria different from those established in the request for tenders.
The debriefing of bidders also causes the return of the bid bond, whenever it is required for bidders’ qualification.
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Article 33 of the PPL allows the Public Administration to accept the participation of interested parties organised as a consortium in the public procurement proceeding. It is a mere option that may be granted or not by the Public Administration, according to the complexity of the agreement’s object.
Besides the proceedings detailed in question 3. Its utilisation has increased in recent years. It allows several public entities to carry out a collective bidding process with the purpose of listing different suppliers and their corresponding price offers.
Differently from a public procurement proceeding in which the winning bidder is granted the right to enter into an agreement with the relevant public entity, in the Price Registration system, the offers are listed and remain binding for one year, during which period the suppliers may be called to execute administrative agreements according to the convenience and needs of the Public Administration.
There are two main exceptions to the constitutional obligation imposed on public entities to perform public procurement proceedings before entering into agreements: The only circumstances authorising dismissal of public procurement proceedings are listed in articles 17 to 24 of the PPL, which refer to situations where a bidding process would be possible, but is dismissed by law for public interest reasons. Cases in which bidding processes are not required are provided by article 25 of the PPPL, and refer to the unique characteristics of the object or the proceeding, as well as the exclusive nature of a supplier or the notorious expertise of a service provider making the competition among bidders unfeasible.
According to article of the PPL, its rules are applied whenever they are applicable to conventions, agreements, arrangements and memoranda of understandings entered into by governmental entities with third parties, among the three branches Executive, Legislative and Judiciary or among organs and governmental entities within the same sphere of the Public Administration. Article 41 of the PPL grants to bidders and third parties the right to challenge the bid document, whenever the Public Administration commits irregularities when applying the rules of the PPL to the bid document.
Furthermore, article of the PPL entitles bidders to file an administrative appeal against administrative acts that have: The aforementioned article also allows interested parties and contractors to file a complaint against a decision rendered by the Public Administration, when no other appeal is available besides requesting reconsideration of such decision to State Ministry or to Municipality and State Secretaries, in cases the Public Administration declares the private party to lack good standing to enter into agreements with governmental entities.
The Public Administration may also revoke public procurement proceedings due to public interest reasons, duly justified and resulting from major adverse events. Private parties are allowed to withdraw from the public procurement proceeding, as long as they do so before the qualifying phase of the proceeding.
During the execution of the administrative agreement, partial or complete default by the private party may cause the imposition of fines, warnings, temporary suspension from taking part in public procurement proceedings for no longer than two yearsbesides the statement of lack of good standing to enter into agreements with the Public Administration, until the private party’s discharge.
In any case, the imposition of penalties by the Public Administration shall be preceded by an administrative process, in which the legal defence of the private party is guaranteed. Administrative sanctions can petrobas imposed in addition to any relevant criminal responsibility, since the PPL also establishes certain crimes that are applicable in relation to public procurement proceedings and petrlbras the execution of administrative agreements.
In addition to the specific remedies provided in the PPL, the parties are always entitled to seek any rights they might have by resorting to the Judiciary as generally ensured by the Decretp Constitution and the rules governing judicial proceedings. Also, it has been generally accepted that governmental entities may be submitted to arbitration in Brazil.
In the past, this was considered a controversial topic, based on the rationale that public interest considered a non-disposable right was at stake. Brazil today draws a clear distinction between decrdto a Pefrobras is acting in its economic capacity ius gestonis or in its sovereign capacity ius imperium. In the first case, which involves mere instrumental or economic activities, and where the State’s activities are of a private nature, the State may be subject to arbitration.
Currently, there are various scattered provisions under Brazilian law which authorise the use of arbitration in disputes involving the State: There is no express provision in the PPL.