Integrating Responsible Business Conduct in Public Procurement

Brazil

1. Policy

The Brazilian Public Procurement Law № 8 666 includes the following RBC objectives – additional frameworks apply, depending on the RBC objective:

Environment

Human rights

Labour rights

Law № 13 467 (2017) applies to contracts by the Federal Public Administration and establishes, among others, legal working hours, night and day shifts and rest days.

People with disabilities

Law № 13 146 (2015) establishes measures to include people with disabilities in society.

Long-term unemployed people

Minority considerations

Decree № 9 450 (2018) covers social inclusion of current and ex-convicts. In addition, Law № 123 (2006) and its reform № 147 (2014) determine how contracting authorities should ease the public procurement procedures so that SMEs can participate and enhance their economic and social development.

Integrity

Several subnational laws1 require companies hired by local public administration to adopt and maintain an integrity programme. Each law establishes sanctions for companies that do not comply with the requirement within a specific timeframe, as well as a threshold above which the requirement is applicable (depending on the value of the contract). The Ministry of Agriculture has an ordinance that entered into effect in 2018 with similar requirements for contracts above BRL 5 million in value.

Law № 13 303 (2016) which provides the legal statute of state-owned companies (SOEs), government-controlled companies and their subsidiaries, also determines the adoption, by SOEs, of a Code of Conduct and Integrity to prevent conflicts of interest and to ban acts of corruption and fraud. The Law is regulated at the federal level by Decree № 8 945 (2016). Both legal frameworks mandate the adoption of internal control, risk management systems, as well as anticorruption compliance measures by SOEs. They also require SOEs to establish a risk department as well as an integrity department, headed by a statutory Executive Director, reporting directly to the CEO. In addition, the law provides rules and procedures for public procurement conducted by SOEs and determines that all related parties’ transactions observe the company’s integrity policies.

Strategic frameworks

• The National Strategy to Combat Corruption and Money Laundering (ENCCLA) addresses Integrity in Public Procurement.

2. Implementation

Tender phase

• In the bidding notes for contracting of services, the Central Purchasing Unit (the Brazilian Central Purchasing Body, CPB), may require that a minimum percentage of the contractor's workforce relates to the prison system, with the purpose of re-socializing the convicts.

• In the case that two suppliers’ circumstances are equal in a tender procedure, contracting authorities shall give preference to the goods and services that are produced or provided by companies that have proven to comply with the required minimum percentage of hiring of people with disabilities, in accordance with Law № 13 146.

• Brazilian contracting authorities must carry out bidding procedures with exclusive participation of SMEs for procurement items up to BRL 80 000.

3. Good Practices

• In 2020, the Government of Brazil prepared a guidance booklet presenting elements and situations that can guide public managers in the area of public procurement in their daily work. The booklet clarifies important aspects related to identification of risks, the analysis of conflicts of interest, the importance of the segregation of functions and monitoring internal control mechanisms of public institutions.

• The Pro-Ethics programme is conducted by the Office of the Comptroller General (CGU), and provides public recognition for companies that, upon evaluation by the CGU, are found to have a robust compliance program and promote a culture of integrity, especially in their relations with the public sector. Among the aspects evaluated by the CGU are the policies and procedures maintained by each company to prevent fraud and corruption in their participation in public procurement processes.

Note

← 1.  Law № 7 753 (2017) of Rio de Janeiro, Law № 4 730 (2018) of Amazonas, Law № 20 489 (2019) of Goiás, Law № 15 228 (2018) of Rio Grande do Sul, Law № 6 112 (2018) of the Federal District, Law № 5 241 (2019) of the City of Aracaju (State of Sergipe)