Critical aspects of the new Regulation for Petrobras bids and contracts

Critical aspects of the new Regulation for Petrobras bids and contracts

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by Julia Mota, published at TN Petroleum Magazine in 03/09/2018

The RLCP – Petrobras’ Bids and Contracts Regulation was published on January 15, 2018, in compliance with Law 13.303/16 (State Companies Law), and is already governing bids – as a pilot – in Espirito Santo unit. As of April 2, the unit of Rio de Janeiro begins to run the new system and the remaining units on May 15. By June 30, all subsidiaries must also publish their own regulations.

The letters of invitation to bid will be gone and all bids must be public. It is important to note that the bids and contracts based on Decree 2.745/98 and the MPC (contracts guide) remain governed by these rules until the termination of the contracts: the two regimes will live together for some time. This dual regime requires increased attention from the staff of suppliers who operate the Petronect and the legal departments.

The bid’s rules under Law 13.303/16 are an “adjusted” version of the bid’s rules of the Differentiated Regime of Public Procurement – RDC (Law 12.462/11), which includes phase inversion (qualification is after judgment), bids stage (with open and closed dispute mode), appeals concentrated at the end, non-disclosed budget, integrated hiring, risk sharing, judgment criteria, tie breaker and other features. The RDC, in turn, brought various concepts of the bid regime – “Pregão” (Law 10.520/02).

For state-owned companies and public companies in general, previously subject to Law 8.666/93, the new regime reduces formalism and bureaucracy, but for Petrobras it represents a major setback. The main difference is the semi-integrated contract (contratação semi-integrada) for engineer and services contracts. Law 13.303/16 establishes a new type of contract, which is basically a “turn-key with basic project”. The turn-keys projects of Decree 2745 become exceptions, subject to strict technical and economic justification, according to the understandings of the Federal Court of Auditors -TCU (due to the identity of the provisions and concepts, the TCU, under the RDC, should be applicable to Petrobras issues).

Without an acceptable justification, Petrobras will have to go to the semi-integrated modality: the basic project shall be previously tendered, and its authors are not allowed to participate in the bid for the project. The basic project can eventually be modified by the contractor, “provided that the superiority of innovations is demonstrated in terms of cost reduction, increase in quality, reduced lead time and ease of maintenance or operation”. Some doubts: in this case will the contractor have the right to amendments? And what will be the criteria for evaluating the “new methodology and technology” offered by the bidder, under the terms of 5th line of Article 43 of Law 13303/16? We do not know how Petrobras will address these issues.

Another point that deserves reflection is the inversion of phases: judging takes place first, according to the public notice criteria (lower price, higher discount, better combination of technique and price, better technique, better artistic content, higher economic return and better disposal of alienated assets). How to guarantee isonomy in determining the parameters in the call for tender when they are not simply numerical?

Bids are public and anyone can access them, which makes it possible for any company to make a proposal, even if it does not have the least capacity to fulfill the contract. One way for Petrobras to avoid a flood of proposals will be the use of compulsory pre-qualification for strategic hiring, which today correspond to 60 families in the company vendors list.

The former certificates, the CRCC and DRS are no longer issued, replaced by a single document, the Certificate of Registration Register (CRC). The registration (cadastro) is not mandatory to participate in the bids, but remains strategic because it acts as a prior assessment, mitigating the risk of the bidder not being qualified to win a bid, in the end of the bid process. Furthermore, it allows access to calls for pre-qualification and bidding processes in registered families. Hence the importance of upgrading families according to the adjustment of families in course in the Petronect, since several of the old families will be canceled soon and only the updated family roll should receive the calls.

It is worth mentioning the possibility of including mediation in the contracts, as an extrajudicial method to resolve disputes. The adoption of mediation can be a huge saving of time and money, enabling win-win solutions and the survival of some suppliers who are out of breath to await a court decision that could take a decade.

We know that Petrobras competes with other oil companies that are not subject to the same formalism and bureaucracy, and also that all this legal apparatus is not a solution to the problem of corruption. From this point of view, Petrobras is expected to be able to create efficient mechanisms to comply with the new Law, without the new requirements rendering the project’s management impractical. It only makes sense to maintain a state-owned company in the exploration of economic activity if it has the tools to act in an agile, rational and efficient manner.

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