"In the interest of the fairness of the bidding process and, considering that this Court [of Auditors of the State of São Paulo] may decide to change the call notice, I determine the suspension of the contested bidding procedure until the final appreciation of the matter," pointed out the councilor Cristiana de Castro Moraes in her dispatch.
As a result, the bid now suspended will have to await the TCE's final decision after the presentation of a defense by the Budget and Management Secretariat of the State of São Paulo to the documents submitted by Intralot do Brasil and the IGT/Scientific Games consortium.
Among the main points attacked by Intralot are:
1 - Failure in economic-financial projections
For the company, there are flawed economic and financial aspects, especially with regard to the estimated value of the contract, which had a reduction of around R$ 100 million and the value of the fixed grant was multiplied by three, reaching R$ 906 million.
According to Intralot do Brasil's arguments, “corresponding documentation was not made available as a term of reference... which has only a few graphs without any interpretation, source or explanation of how they reached such results.”
The counselor stated in her dispatch that the company emphasizes that the data offered are not accompanied by elements that support them, a problem that led to the deconstitution of the previous bidding.”
2 - Requirement of technical qualification below the object bid and the number of transactions
Among the arguments pointed out by Intralot do Brasil is the fact that, regarding technical qualification, "it failed to specify the number of transactions that must be proven as a result of previous experience by the bidders."
She also adds that “demonstration of previous performance of lottery operations by physical means is not requested, which can be delegated to the company without any proof” and that “there is undue discredit to companies that have developed over the years platforms and structures for managing and operating lotteries.”
3 – Failure to hold a public hearing
The applicant informs that “no public hearing was held after the publication of the new tender, arguing, based on article 39 of Federal Law No. 8.666/93, that the bidding process relevant to this instrument should not be considered the same as the previous one, in view of the substantial changes made, which is why the lack of manifestation by the represented in this regard 'leaves the company and any participating companies blind, especially regarding the important financial issue'”. She also argues that “the Administration cannot take advantage of the public hearing implemented before, as it dealt with other documentation. It cites, by the way, jurisprudential guidelines and manifestation of the Public Prosecutor's Office with the Court of Auditors of the State of Santa Catarina.”
The consortium formed by IGT and Scientific Games presented the following points that were also accepted by the councilor:
1 – Inconsistent deadlines and non-disclosure of the public notice in a foreign language
The consortium points out that “the Secretariat made available incompatible interregnums for the performance of acts in tournaments whose object is innovative, complex, large and relevant, as well as open to the participation of foreign competitors, in violation of several incident principles in the matter... translated documents, delaying all the preparation for the dispute of international interested parties, which, among other points, also disrespects the guidance of this Court [of Auditors].”
2 - Failures in economic-financial modeling
After narrating the background to the bidding procedure, including the TCE's previous determination, "they censure the lack of presentation, together with the competition, of an economic-financial feasibility study of all assumptions, information and data adopted for modeling the reference project, since only a summary was offered about the values and benchmarks adopted for the concession. They indicate the impossibility of deducing, from this material, technical details that were the basis for the stipulation of the values presented, making it impossible to understand the variables involved in the contract.”
According to the councilor, the consortium “emphasises, in particular, comparing the weaknesses evidenced in the past contest, that the modeling summary, in addition to not being included as an annex to the public notice, does not bring an element or reference from the studies presented at the PMI and materializes a document superficial, fragmented and disconnected from reality.”
In the dispatch, Cristiana Moraes points to another IGT/SC argument: “the messy way in which SOG launched this Tender No. 02/2022, two months before the end of the current governor’s term, and with inexplicable changes in such important features of the such as the tripling of the minimum amount of the grant (without the forecast of this revenue either in the Budgetary Guidelines Law of the State of São Paulo or in the project of the state budgetary law of 2023), without the due technical justifications, raise well-founded suspicions about the fairness of the contest , it being entirely advisable that the TCE-SP paralyze and annul Bid No. 02/2022.”
3 - Absence of distinction between concession revenues
The consortium also complained about “the lack of differentiation between revenues from sales of lottery tickets at physical and virtual points of sale, which makes it impossible to estimate the distribution margin for better collection in each of these channels” and argue that “it would be counterproductive to imagine that the ancillary revenues that may exist in the first year of the concession are sufficient for the cost of the operation and sharing with the Administration in the percentage established in the contractual draft.”
They add, moreover, that “the values foreseen for this category of income were stipulated at disproportionate levels, exemplifying the situation of the sports lottery (fixed quota)”.
4 - Lack of technical qualification compatible with the concession
Like Intralot do Brasil, the IGT/SC consortium also pointed out inconsistency in terms of technical qualification, saying that “although the object of the bidding is the creation, distribution and commercialization of lottery products, including the capture and maintenance of a network of points of sale physical, generic experience is required, below the extent and complexity of the object of the bidding, as responsible for the operation of a virtual sales system and/or for the operation of sales in a physical environment, which has accounted for at least 25,000,000 (twenty-five million) of TRANSACTIONS carried out within a maximum interval of 12 (twelve) consecutive months.”
The consortium points out “that it is appropriate to request proof of technical qualification and experience compatible with the operation of lotteries in physical and virtual means.”
5 – Forecast of illegal subcontracting, configuring true subconcession
Among other points, they indicate that there is “the possibility of total subcontracting of the object in violation of administrative principles, in addition to causing damage to the State and citizens” and that there is “an attempt to obtain subconcession permission without prior competition, in violation of subitem 32.9 of the draft of the covenant and article 26, paragraph 1, of Federal Law nº 8.987/95.
6 - Absence of substantiated responses to requests for clarification and pending consideration of the representatives' request for extension
They censure “the provision of answers to requests for clarification in a generic way, without adequate grounds or justification, which contributes to tarnishing the bidding process, as it does not resolve the doubts presented”, as well as “they do not conform, moreover, with the lack of response to the representatives' request for a deadline extension, which is provided for in sub-item 8.9.2 of the instrument.”
The applicants detail, "the tightness of the deadlines for the practice of several acts pertinent to the bidding, characterized by being of an international nature and involving a large amount."
In view of the arguments presented by Intralot do Brasil and the IGT/SC consortium, the councilor summarizes that “both applicants require the granting of a measure to suspend the bidding, so that, in the end, the correction of all irregularities is determined”.
Thus, Cristiana de Castro Moraes dispatched that she could envision, “at least in theory, public notice provisions contrary to the rule of regency.”
And she decided:
“All aspects are crucial for the integrity of the bidding process, so they are enough to justify the prior intervention of this Court in the bidding process.
For these reasons, based on the sole paragraph of article 221 of our Internal Regulations, I sign to the competent authority a period of 48 (forty-eight) hours to forward a full copy of the contested invitation to tender and its annexes, including any documents regarding the studies viability of the concession not included in the instrument, as well as to offer the relevant justifications on the questioned points, as well as on those added in this decision, to include proof of compliance with the guidelines contained in processes No. TC-008544.989.22-1 , TC-008622.989.22-6, TC-008769.989.22-9 and TC-008936.989.22-7.
In the interest of the fairness of the bidding and, considering that this Court may decide to change the call notice, I determine the suspension of the contested bidding procedure until final appreciation of the matter.”
Source: GMB
