Public procurement and compliance

The last years have been intense for Brazil in several fields, especially in the economic, political and legal. We experienced a perfect storm with the political-institutional crisis that culminated in a process of impeachment and an economic recession. But at the same time, Brazilian society is more vigilant and social control is becoming more intense and rigorous, with institutions independent and strengthened.

Considering the recent past, it is possible to affirm that this movement began in 2011 with the publication of the access to information law (Federal Law No. 12,527), which, in regulating the right to information provided in the constitutional text (article 5, XXXIII), also brought a moral influence in the management of public affairs. After all, the work of the public agent now has easier access to social scrutiny. This is what Louis Brandeis, a former US Supreme Court Justice Minister, had already announced in his early 20th-century book when he devoted a specific chapter to the benefits of publicity (What Publicity Can Do): sunlight is the best of disinfectants .

And this culture of transparency is not exclusive to the public sector. On the contrary, it is a commandment of order equally obligatory for the private, especially when both relate. It is precisely in this context that the Brazilian Clean Company Law (Federal Law No. 12,846), published by the National Congress in 2013 in response to the popular demonstrations, fits.

The compliance goes from mere reduction of penalties to a true instrument inducing the culture of transparency

One of its main vectors is the imposition of the culture of transparency and integrity between public-private relations through the creation of compliance programs and instruments that allow their effective application in the corporate daily life.

There is no doubt that this regulatory framework for combating corruption has been instrumental in inducing new social behavior, not only as a result of a more effective application of increasingly severe penalties by the public authorities (punitive and pedagogical effect), but above all by aversion society to cases of spurious relations between the public and private.

However, so far, fact is that integrity and compliance programs are not legally mandated. Timidly, agencies and entities of the public administration have been adopting requirements in this sense as a way of creating an obligation for those private companies interested in maintaining or establishing contractual relations, as is the case with BNDES.

Despite the existence of debates at the federal level on compulsory enforcement of integrity programs as a condition for contracting with the public administration, no such legislation is known.

In October, the State of Rio de Janeiro, despite not having regulated the Brazilian law of the clean company of 2013, until the conclusion of this article, paradoxically published the State Law No. 7,753, becoming conditional on the existence of compliance programs in business companies to the maintenance of public contracts with state bodies and entities.

The ordinary legislator has granted a period of 180 days, from the date of conclusion of the contract, for the legal entity to implement its integrity program, under penalty of fine and even prohibition of contracting with the State.

Without going into occasional criticisms of the legislative text and the lack of systematization of the state regulatory framework, it is undeniable that the intention is praiseworthy and that it is an example to be followed in other spheres, especially in the federal sphere.

Integrity programs fit within a broader concept of business transparency. In this context, compliance goes from being a mere element that reduces penalties in the case of accountability processes within the scope of the Clean Company Law to a true instrument that induces the culture of transparency in the public-private relationship.Nothing more correct; after all, it is incumbent upon the State to regulate by means of incentives, making use of the regulatory tools capable of achieving socially ambitious objectives and goals.

Sunlight is, yes, the best of disinfectants. There is no other way. Care must, however, be taken to ensure that the application of these laws is isonomic and does not end up becoming another mechanism capable of distorting and unbalancing the competitive field.

Fernando Villela de Andrade Vianna is a member of the administrative, regulatory and infrastructure law sector of Siqueira Castro – Advogados. Master of Laws in Trade Regulation (Master of Laws) from New York University (NYU), postgraduate in Law of the State and Regulation by the Getúlio Vargas Foundation of Rio de Janeiro.

This article reflects the views of the author, not the newspaper Valor Econômico. The newspaper is not responsible and can not be held responsible for the information.

Leave a Reply

Your email address will not be published. Required fields are marked *

© Copyright 2017 - DBA Advocacia. Todos os direitos reservados.
Desenvolvido por