The BNDES (National Economic and Social Development Bank) and SEFEL (Secretariat for Fiscal, Energy and Lottery Monitoring) collected the concerns of foreign companies during the last road shows in Sao Paulo and Rio de Janeiro and generated five documents to clarify any type of doubts. Among these consultations, those referring to the limits of the possible performance of the Caixa Economica Federal stand out before and after the LOTEX tender.
Here are the two main questions asked by the companies and the Commission's answers to clarify them:
1) Does the CAIXA ECONÔMICA FEDERAL, alone, in a Consortium, or through its controlling companies, controlled companies and affiliates, fit the prohibition set forth in Clause 5.3, IV of the Final Tender Protocol and, therefore, can not participate in the Auction? If CAIXA becomes interested in becoming a shareholder of the Concessionaire after signing the Concession Agreement as a non-controlling minority shareholder, CAIXA will not be prevented from doing so, without it being necessary to request prior consent under the terms of Clause 22 of the Contract, but only notify the Granting Authority in 5 days?
Pursuant to item 5.3, item IV, of the Final Tender Protocol, a "legal person whose manager (s) or technical manager (s) may not participate in the bid, alone or in a consortium, m) been an occupant (s) of effective position or employment in the Ministry of Finance, BNDES and / or Caixa Econômica Federal, or occupant (s) in charge of senior management or intermediate assistance of the Union, in the last 180 days prior to the date of publication of the Edict.
In a first reading, the text seems to be intended for entities other than those listed expressly, since it is dealing with the prohibition of certain legal persons because of the condition held by their directors or technical officials, that is, they are or have been "occupant s) of effective position or employment in the Ministry of Finance, BNDES and / or the Federal Savings Bank."
However, the rule is also applicable to the BNDES and Caixa Econômica Federal, which are also prohibited from participating in the process. If the prohibition applies to entities in which employees and former employees of the Ministry of Finance, the BNDES or the Caixa Econômica Federal are acting, it is certain that the restriction in question also extends to such entities, without any consideration of time lag .
The ban in question seeks to protect, among other issues, the informational asymmetry eventually held by the Ministry of Finance, BNDES or Caixa Econômica Federal, due to the involvement, at different levels of depth, with the production of the technical studies that led to the publication of the Edict. Specifically in relation to Caixa Econômica Federal, other justifications, including those of a competitive and market character, are set out in SEI Technical Note No. 5/2018 / COGPS / SUFIL / SEAE-MF, dated on 01/12/2018.
For this reason, the restriction of participation in discussion is also extended to entities of the same economic group of BNDES and Caixa Econômica Federal, considering that the technical grounds that determine the prohibition of such legal entities are also supported in relation to their entities controlling companies. At this point, there is a prohibition on indirect participation in the event, described in art. 9, paragraph 3, of Law 8,666 of June 21, 1993.
Another issue is the possibility that such entities, whose participation is prohibited in this tender, will join the future concessionaire's board of directors after hiring the concession. On the one hand, Clause 22 of the Draft Contract (Exhibit 19 to the Final Tender Protocol) sets forth the terms for transferring the concession or corporate control of the concessionaire, conditioning such measures to the prior approval of the Granting Authority. On the other hand, other cases of corporate change must be reported to the Granting Authority after its completion.
Nevertheless, it is necessary to consider that the terms of the Edict continue to apply even after the bidding process has ended. This is the application of the principle of linkage to the convening instrument, provided for in art. 55, item XI, of Law No. 8,666, of June 21, 1993, requiring strict observance of the editalic rules, as applicable, during the contractual relationship. For this reason, the Invitation to Bid is attached as an Annex to the Draft Contract (Annex 6).
Thus, the participation prohibitions described in item 5.3, item IV, of the Edict remain applicable after the contracting of the concession, preventing the entities mentioned therein from becoming members of the future concessionaire. In fact, allowing the entry of these entities into the concessionaire's corporate structure after contracting the concession could stimulate parallel adjustments (side letter), prior to the bidding, in violation of the principle of isonomy and competitiveness, meaning mockery to the convening instrument.
Finally, it is worth noting that the ban described in item 5.3, item IV, of the Edict, considering the above clarifications, does not prevent the establishment of commercial relations with entities whose participation in the event is prohibited, falling within the scope of operational freedom to be conferred on the future concessionaire at the end of the Draft Contract.
No, the negotiation between the Concessionaire and the lottery network for the marketing of LOTEX products shall comply with the rules of contractual relations established between Caixa Econômica Federal and lottery stores.
This is because, under the terms of current legislation, Caixa Econômica Federal is the one that holds the power to carry out bids for the purpose of hiring lottery licensees, and such permit holders may only market products authorized by Caixa Econômica Federal.
Source: GMB
