PL 1292/95 proposes extending expression of interest procedures (PMI) to the general tender regime, giving the public administration the possibility of using projects and studies prepared by private parties that are of interest to it for contracting works and/or services.

by Marília de Oliveira Bassi

In the coming months, after the covid-19 pandemic period the country is going through, PL 1292/95¹ — which sets rules on public tenders and contracts, among other legislative changes, repealing Federal Law 8,666/93, Federal Law 10,520/02 (“reverse auction law”) and some provisions of Federal Law 12,462/2011 (“RDC Law”) — is likely to be placed on the Federal Senate’s agenda after approval by the Chamber of Deputies.

To begin with, the main changes introduced by PL 1292/95 include (i) the inversion of phases as the rule in tender procedures; (ii) the public administration’s confidential budget; (iii) a mandatory compliance program for large-scale contracts; (iv) the creation of the National Public Procurement Portal (PNCP); (v) the creation of the role of contracting agent; (vi) updated thresholds for direct contracting; (vii) changes to insurance percentages; and (viii) the incorporation of the modality known as competitive dialogue².

Already familiar in other tender modalities, the inversion of phases and the confidential budget are not new in Brazilian tender procedures, being used mainly in reverse auctions and in the Differentiated Contracting Regime (RDC). Under PL 1292/95, the inversion of phases will become the rule, but the ordinary procedure, as currently provided for in Federal Law 8,666/93, may be adopted at the public administrator’s discretion.

On the other hand, the confidential budget is presented as optional; that is, it will be up to the public administration to decide whether to disclose the estimated budget for a given contract, although the tender notice must provide sufficient information for bidders to prepare their proposals. Although the bill makes the decision to keep the budget confidential optional, it is argued that the public administration will not be exempt from observing the principle of giving reasons for its acts, expressly justifying the choice made for a given tender.

In addition, in the wake of the main anti-corruption operations and projects in the country, PL 1292/95 provides for the need for bidding companies/organizations to have, or commit to implementing, a compliance program, limited to large-scale contracts. In the current scenario, after the revelation of countless corruption schemes involving administrative contracts and the participation of large companies and public officials over the last decade, the provision requiring future private contractors to implement anti-corruption policies is very timely, in line with the objective of current legislation on the subject (Improbity Law 8,429/92 and Anti-Corruption Law 12,846/13)

Next, seeking to speed up contracting procedures and standardize bidder information nationwide, PL 1292/95 proposes the creation of the National Public Procurement Portal (PNCP), presented as the country’s official electronic public procurement portal, with representatives from various federative entities, functioning not only as a general archive of contract documents — with the aim of increasing the transparency and publicity of contracts — but also as the main registration hub for bidding companies.

Another noteworthy change is the replacement of tender committees by contracting agents, who will be responsible for conducting tender procedures together with a support team. PL 1292/95 also provides that a tender committee may be used exceptionally for contracting special goods and services.

Moreover, as public managers had hoped, PL 1292/95, recognizing the day-to-day difficulties of the public administration, raises the maximum amounts allowing direct contracting, that is, without the need for a prior tender procedure. For services in general, for example, the cap will be BRL 50,000.00, while engineering works costing up to BRL 100,000.00 may also be contracted directly.

Major changes relating to contractual guarantees can also be seen and, with the aim of giving the public administration greater security and effectiveness in contract performance, PL 1292/95 proposes insurance percentages that may reach 30% of the contract value for large-scale contracts, understood as those exceeding BRL 200,000,000.00 (two hundred million reais). The critical point in this change is that the cost of the contractual guarantee may directly affect the commercial proposals submitted by bidders, so that the greater security given to the contracting Administration may, in return, mean less economically advantageous proposals.

Art. 100 of PL 1292/95 proposes a contractual clause known as step-in, allowing the insurer itself to take over performance of the administrative contract if the contractor is prevented from or incapable of completing and delivering the services and works.

In addition, with the invitation and price-taking modalities removed, PL 1292/95 proposes the creation of the “competitive dialogue” modality, in which, during the tender, bidders share their expertise regarding the contracted object and, after a period opened by the Public Administration, present innovative solutions for performing the contract.

Last but not least, seeking to ensure the quality of the projects presented and efficiency in contract performance, PL 1292/95 proposes extending expression of interest procedures (PMI) to the general tender regime, giving the public administration the possibility of using projects and studies prepared by private parties that are of interest to it for contracting works and/or services.

Thus, considering the positive scenario brought by the changes proposed by PL 1292/95, as well as the objectives of reducing red tape in procedures and bringing speed, efficiency and transparency to contract performance, the text now awaits consideration by the Federal Senate.

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Article originally published in Migalhas (in Portuguese), on 04.07.2020.