The tender for Loterj, by decision of the Deputy Councilor Andrea Siqueira Martins, of the Court of Auditors of the State of Rio de Janeiro, is suspended until Thursday (8), when the company will present its defense to the supervisory body.
Even so, the tender had its first phase, as the TCE's decision came out after the opening of the session, and the consortium formed by MCE, which already operates Loterj's lottery products, and Santa Casa de Misericórdia of Lisbon was the only one to present the technical and financial qualification envelopes and the commercial proposal for exploring new lottery modalities and sports betting, physical and online at the event.
In recent days, Loterj had already made clarifications and denied requests to contest the Notice, demonstrating in its justifications all legal aspects relating to the bidding itself, as well as pointing out issues related to the lottery market to prove the fairness of the event.
The companies claimed that the Notice and its respective annexes had serious flaws that jeopardized the competitiveness and isonomy among the bidders, namely:
(i) the legal model chosen for the contracting does not suit the contractual object, nor the amount of necessary investments and the term of validity of the Agreement;
(ii) the requirement of some qualification requirements flagrantly restricts the character of competitiveness that must be extracted from the event;
(iii) the requirement of some qualification requirements flagrantly restricts the character of competitiveness that must be extracted from the event;
(iv) there are inconsistencies and information gaps in the Notice, which affect the price assessment; and
(v) it is impossible to execute the contract - at least as proposed by LOTERJ, which may cause serious damage to the Public Administration.
IGT and SG also pointed out that LOTERJ opted for the competitive bidding modality of the lowest global price type, and, by art. 57, II and §4 of the Bidding Law, the term of validity, according to the chosen bidding modality, could not exceed 60 months, which makes the object of the bidding unfeasible, as the bidding seeks an operator capable of installing three central lottery systems for:
(i) instant games,
(ii) prediction lottery, and
(iii) sports betting
All systems certified by the WLA and capable of operating in physical and virtual mode and, in addition, the operator needed to compete with the national lottery operator (CAIXA), which has a legal permission without any time limitation, and LOTEX, which has a 15-year lease. For companies, the 5-year term was incompatible with what is expected of the contractor, and brings a significant disadvantage to the contractor, who would compete mainly with the CAIXA Lottery and LOTEX.
They also maintained that the disputed bid was doomed to failure, precisely because it is not the modality of competition suitable for contracting lottery exploration services, since it would be much more feasible to have a public service concession model, along the lines of Federal Law No. 8.987/1995 ("General Law of Concessions"), since it would be possible to stipulate a longer contractual period, being an option viable, in addition to questioning other inconsistencies and gaps in the aforementioned Notice.
Finally, they added that, in addition to the model proposed in the Notice not being suited to the object of the contract, the necessary investments and the term of the contract, several qualification requirements restrict the character of competitiveness, which must be inherent to the event. Likewise, there were several inconsistencies and information gaps in the Notice that hindered the price assessment and, therefore, the execution of the contract, under the terms proposed by LOTERJ, which could, according to them, even cause serious damage to the Public Administration.
Andrea Siqueira Martins, Deputy Board Member of the TCE, opted for the granting of the injunction to suspend Public Tender No. 010/2021 at the stage in which it is, until a conclusive pronouncement by the Court of Auditors in this process, abstaining from awarding, approving and entering into a contract resulting from the bidding process, pursuant to article 84-A of the Internal Regulations of this TCE-RJ.
In the resolution, she asks the current President of LOTERJ - Lottery of the State of Rio de Janeiro so that, within 3 (three) days, he/she meets the following determinations:
I – manifest itself on the representative's allegations, addressing all the issues listed in the report of this decision, forwarding the relevant documentation to the event, including technical and legal opinions;
II – forward a copy of the administrative decisions of the appeals/objections filed by the bidders and inform the stage of the Public Tender No. 001/2021;
III – present technical justification about the indivisibility of the object in light of the principle of competitiveness;
IV - clarify how the services object of the bidding in question have been provided, considering the performance of Bid Notice No. 01/2018, which resulted in the execution, by LOTERJ, of Contract No. 001/2020.
It is expected that after the presentation of the defense by LOTERJ, the TCE will define the directions of the bidding, but in the case of continuity of the process, only the consortium formed by MCE and Santa Casa de Misericórdia of Lisbon will undergo the technical evaluation for further opening envelope with the commercial proposal. If the Court of Auditors determines the cancellation of the bidding, LOTERJ will fight for the maintenance of the bid or launch a new process after the final decision of the TCE.
Source: GMB
