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Tender rules; Petrobras discloses its  Tender and Contracts Rules

Oil and Gas

On January 15th, the Board of Directors of Petrobras issued rules for tender and contract procedures in a document called Petrobras’ Rules for Tender and Contracts (Regulamento de Licitações e Contratos da Petrobras  – “RLCP”). RLCP stipulates contracting mechanisms, bid rules, information on contract management and other matters related to Petrobras’ tender procedures. RLCP replaces both Petrobras’ Simplified Tender Procedures Rules (Regulamento do Procedimento Licitatório Simplificado da Petrobras – “Decree No. 2,745/98”) and Petrobras’ Contracting Handbook (Manual Petrobras para Contratação – “MPC”). 

The issuance of RLCP is governed by Decree No. 8,945/16, which regulates the State-Owned Companies' Law (Law No. 13,303/16), that governs the legal regime of state-owned and mixed-capital companies. Decree No. 8,945/16 established a deadline until June 30, 2018 for state-owned companies to amend their by-laws in accordance with Law No. 13,303/16.

The application of the rules in RLCP will occur in a progressive manner on different dates for each unit of Petrobras, beginning with the states of Espírito Santo and Rio de Janeiro.

Among the most relevant aspects of RLCP, we highlight the following:

contracting, as a rule, must take place through a public bid process, enabling the participation of all interested parties that comply with the conditions set forth in the tender protocol, and should be preferentially submitted in electronic format. The previous legal requirement that an invitation letter be issued is not included in the RLCP;

tender procedures and the contracts, either initiated or executed prior to the enforcement of RLCP, will continue to be governed by Decree No. 2,745/98 and by MPC until the expiration of those contracts. Amendments signed prior to the issuance of RLCP will also remain governed by the referred Decree and MPC;

RLCP formalizes the due diligence process regarding suppliers' integrity (Due Diligence de Integridade – DDI), which has been adopted by Petrobras since 2015. Accordingly, every company interested in the tender and contracting with Petrobras must complete a compliance questionnaire.

Petrobras will classify each purchase transaction and each company into three different degrees of integrity risk (Grau de Risco de Integridade – “GRI”): green (low risk degree), yellow (medium risk) and red (high risk). By such assessment, Petrobras will identify the suppliers that will not be able to engage in its contracting procedures due to a high GRI, except when : (i) a bid is not required or waived; or (ii) competition or tender for the sale of assets is not feasible.  

RLCP (in Portuguese only) is available at Petrobras’ website here and clarified on this page here, which was created by Petrobras to assist suppliers.

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