In recent years, especially since the launch of “Operation Car Wash” (Lava Jato), the Federal Court of Accounts, using the prerogative in article 46 of Federal Law 8,443/1992 (“TCU Organic Law”), has been opening representations to investigate and declare unfit companies that took part in tenders suspected of fraud.
According to the legal text, “where proven fraud in a tender is found, the Court shall declare the fraudulent bidder unfit to participate, for up to five years, in tenders in the Federal Public Administration”, and there is no other provision on the subject in the body of the law or even in its Internal Rules.
To avoid doubts about the application of this sanction, especially regarding the accumulation of more than one declaration of unfitness, in 2012 the TCU opened an administrative proceeding to study the subject (TC No. 027.014/2012-6), with a view to consolidating the way in which the Office of the Comptroller General recorded this restriction in the federal contracting registry.
With Justice Walton Alencar as reporting justice, at the session held on 02/24/2016, Judgment No. 348/2016 – Plenary was issued, establishing certain understandings not only on the duration of the sanction but also on its scope. The guidance that came into force can be summarized as follows:
- Regarding the scope of the sanctions imposed by the TCU, it was held that the declaration of unfitness also covered tenders and direct contracts conducted by states and municipalities when funded by voluntary transfers from the Federal Government, dispelling doubts about the scope of the final part of article 46, which provides that the proven fraud must occur in a “tender in the Federal Public Administration”.
- The period for serving the sanction only begins to run once the decision imposing it becomes final.
- Where more than one declaration of unfitness is imposed on the same company, which may have equal or different periods, each will be served successively, not concurrently. This is because, in the TCU’s view, serving sanctions concurrently would undermine the retributive nature of the penalty, reducing its effectiveness. Thus, supposing that decision “A”, imposing a one-year declaration of unfitness, comes into force today, any sanctions arising after this date will begin when the first penalty ends, preventing more than one sanction from being served at the same time.
- In any case, regardless of the number of accumulated sanctions, the total period served by the company as a result of their sum may not exceed a maximum of five years, by analogy with article 75 of the Criminal Code, which provides for the unification of sentences. If there is a new conviction during this period for an act subsequent to the start of the sanction, a new unification will be carried out, adding the remaining period of the old sanction to the period of the new sanction and disregarding the period already served. If the new conviction is for a prior act, the total sanction is added to the overall period, limited to five years. In general, the rule in force in Criminal Law is followed.
- If, after the total period of these sanctions has been served, a new declaration of unfitness is issued, it will be considered an original punishment, regardless of whether the act itself occurred before or after the enforcement period.
Against Judgment No. 348/2016 – Plenary, the Public Prosecutor’s Office before the Court of Accounts filed a Request for Review, seeking mainly to change the maximum duration of accumulated sanctions, set at five years. For the MPTCU, accumulated declarations of unfitness should not be limited by any period or, if they were, the thirty-year criminal limit should apply.
The TCU Plenary, meeting on 11/21/2018, this time with Justice Bruno Dantas as reporting justice, issued Judgment No. 2,702/2018, maintaining the five-year time limit for serving accumulated sanctions, with some changes to the previously established understanding.
Accumulated sanctions, which continue to be served successively, now take as their starting point the date on which each becomes final. In any case, for the purpose of calculating the total limit of five years, this period is calculated from the first of the various sanctions imposed.
However, the guidance in force for a new fraud committed while a sanction of unfitness is being served has changed considerably. Previously, as noted, there were two different rules for a supervening offense, with equally different forms of calculation and starting point, depending on the date of the offense (before or after the first penalty was imposed).
Now, if a new fraud is committed while the sanction is being served, the five-year limit will start again from the date of this new offense (not from the date the decision becomes final), disregarding the entire period already served and carrying out a new unification. In practice, therefore, accumulated sanctions may exceed the five-year period under this less rigid interpretation of the Court’s own guidance.
