By Giuseppe Giamundo Neto and Fernanda Leoni

Although it can no longer be seen as a novelty in our system, the possibility and requirements of direct contracting by state-owned companies based on business opportunities are still subjects of recurring debate. Provided for in article 28, §3, item II, of Federal Law 13,303/2016 [1] (State-Owned Companies Law), the mechanism has always been at the center of discussion regarding its legality, notably as a way of avoiding the tender procedure.

In establishing an exception to the duty to tender, the legal provision did not clarify whether it was a case of waiver or non-requirement of tender, and it is therefore commonly characterized as a third category of direct contracting, that of “non-applicability” of contracting through tender [2]. Regardless, the fact is that the mechanism was well received by state-owned companies, being included both in many companies’ general tender and contracting regulations and as the subject of specific regulations [3].

Another point of discussion focused on the requirements for its formalization. While non-requirement of tender would stem from a generic and objective impossibility of competition, the business opportunity partnership would be based on the very absence of criteria for state-owned companies to choose potential partners, since this basis would be tied precisely to the subjective conditions of the prospective partners [4].

Even though this is a contracting model generally aimed at the private business of state-owned companies or at the portion of their activities not fully subject to the administrative legal regime, the TCU has not failed to address the matter.

In 2017, the Court assessed the regularity of the direct contracting by Caixa Econômica Federal of CPM Braxis to provide information technology services. In examining the business opportunity hypothesis [5], Judgment No. 2,645/2017-Plenary stated that the grounds used by the parties, relating to “synergy, economic return and compatibility of corporate purpose”, would not suffice to establish the impossibility of competition — an analysis that, in our view, ends up entering the sphere of discretion of the state-owned company’s decision.

The following year, when monitoring state divestments at Eletrobras, the TCU ordered the company to provide in its internal rules that the use of business opportunities be limited to situations in which the impossibility of a tender procedure is justified [6], leading to an approach much closer to the general rule of non-requirement, which does not seem to us to be the regulated hypothesis.

Also in 2018, two important precedents were issued on the matter. In Judgment No. 2,488/2018-Plenary, involving Telebras, the TCU not only defined the objective requirements to be assessed in characterizing a business opportunity [7], but also ordered the renegotiation of certain contractual clauses, including financial conditions [8]. In Judgment No. 2,993/2018-Plenary, involving complaints against ECT, an oversight plan was proposed for contracts for consulting services entered into without tender, so that “the requirements of the unique nature of the object and the recognized expertise of the performing company would be established”.

The matter was debated again in 2020, in a case specifically involving a review of Banco do Brasil’s strategic partnership processes [9]. In this situation, the TCU’s approach was quite interesting, as it designed a complete risk matrix for the institution, which flagged, among others, risks related to the decision-making process for forming partnerships; insufficient reasoning for establishing the impossibility of a competitive procedure; failure to establish the association nature of the strategic partnership; irregularities in direct contracting; etc. The same assessment was carried out for Banco do Nordeste do Brasil, pointing out similar risks [10].

In 2021, Judgment No. 1,744/2021-Plenary assessed a contract formalized by BNDES, declaring the use of business opportunities unfeasible for hiring specialized technical consultants, but declaring legitimate the internal rule issued by the bank. To a certain extent, the Court reviewed the adequacy of the internal rules issued by the development bank.

In general, given the technical competence assigned to the TCU to assess the many types of contracts entered into by state-owned companies, there is no doubt that its contribution is relevant to the improvement of the business partnership model itself. However, it is essential that the Court identify its limitations in this type of analysis more precisely, at the risk of rendering unviable a contracting mechanism that, by its very nature, must be more flexible.

[1] See: “Public companies and mixed-capital companies are exempt from complying with the provisions of this Chapter in the following situations: (…) II – in cases where the choice of partner is associated with its particular characteristics, linked to defined and specific business opportunities, provided the impossibility of a competitive procedure is justified”.

[2] This is the position defended by Luciano Ferraz and adopted by us (FERRAZ, Luciano. Empresas estatais e oportunidades de negócio. In ZOCKUN, Maurício, GABARDO, Emerson (Coord.). O direito administrativo pós-crise. Curitiba: Íthala, 2021).

[3] See, for example, the Business Regulations of Companhia Cearense de Transportes Metropolitanos; the Internal Regulations for Business Opportunities of Companhia de Tecnologia da Informação do Estado de Minas Gerais; and the Regulations for Contracting Partnerships in Business Opportunities of the Federal Data Processing Service (Serpro).

[4] This is the position of FERRAZ, Luciano; MOTTA, Fabrício. Empresas estatais e suas subsidiárias – requisitos constitucionais para a transferência do controle acionário. Revista Interesse Público. Year 20. No. 112. p. 15-35, 2018.

[5] It is important to note that the transaction had not originally been formalized on this basis, so the TCU analyzed the subsidiarity of this model in relation to waiver and non-requirement situations.

[6] This is Judgment No. 1765/2018-Plenary.

[7] See: “From reading this legal provision, I find that the direct contracting of the partner company depends on: a) the existence of a business opportunity, which may be established through a wide range of associative, corporate or contractual models, as set forth in § 4 of art. 28 of the State-Owned Companies Law; b) a demonstration of the commercial advantage expected to accrue to the state-owned company; c) proof by the public manager that the chosen partner has particular conditions demonstrating its superiority over other companies operating in that market; and d) a demonstration of the impossibility of a competitive procedure”.

[8] See: “9.2. order Telebras to: 9.2.1. within 90 days, renegotiate with Viasat the economic conditions of the contract, in order to reduce the amount contractually provided to be paid monthly by Telebras to Viasat per active VSAT from BRL 160.00 (one hundred and sixty reais) to BRL 107.60 (one hundred and seven reais and sixty centavos)”.

[9] This is Judgment No. 3,230/2020-Plenary.

[10] As per Judgment No. 2,597/2021-Plenary.

Originally published on ConJur.com (in Portuguese)