From 05/11/2020, foreign companies not operating in Brazil will be able to participate in tender processes through Sicaf (Unified Supplier Registration System).
Normative Instruction No. 10 (‘IN No. 10/2020’) of the Special Secretariat for Debureaucratization, Management and Digital Government of the Ministry of Economy was published in the Federal Official Gazette (DOU) on 02/10/2020. The rule aims to facilitate the direct participation of foreign companies in federal tender processes, without the need for a Brazilian representative.
Before this rule was issued, foreign companies not operating in Brazil could not register directly with SICAF (except for tenders funded by the IDB or the IBRD). With the publication of the rule, from May 11, 2020, companies will be able to participate in the competitive process, and only later — if they are the winning bidder — at the time of contracting, will they need to meet the requirements for entering into the administrative contract.
IN No. 10/2020 has the potential to allow foreign companies to enter more than 99% of the federal government’s procurement processes (Ministry of Economy data[1]). In addition to procedures for the purchase and contracting of common goods, services and engineering works (generally tendered through reverse auctions), the rule will also facilitate the participation of international companies in tenders for infrastructure works.
The rule does not apply to all tender modalities, but only to those conducted electronically, such as electronic reverse auctions, the electronic Differentiated Contracting Regime (‘RDC’) and electronic waivers, under art. 20-A of the rule. Furthermore, it should be stressed that the permission must be expressly stated in the call for bids (art. 21).
It should be noted that the normative instruction, like the recent Decree No. 10,024/2019 (which regulates electronic reverse auctions and waivers), is yet another federal government measure with the stated aim of simplifying the entry of companies from other countries into Brazil, encouraging competition and the pursuit of lower prices in public procurement.
In this regard, the important contributions of Decree No. 10,024 of 09/20/2019 should be highlighted; among them is the possibility for foreign bidders to submit registration documents in a free translation only, with sworn translation of their documents required only if they win the tender.
The federal government’s concern to implement measures capable of opening the market to foreign companies in order to encourage competition in the country is therefore evident. Accordingly, the trend is that, despite the specificities of Brazilian legislation and the Brazilian market, there will be greater participation by foreign companies and less red tape in public tenders.
[1] Link to the news item: <http://www.economia.gov.br/noticias/2019/09/ministerio-da-economia-debate-as-novas-regras-para-compras-publicas-por-pregao-eletronico>. Accessed on 03/03/2020.
