(English) The preference for national products and services in public biddings
[:en]The preference for national products and services in public biddings
Fernanda Assis Souza and Maria Letícia R. G. Araújo Resende – Attorneys of the Public Law Department
On 16 December 2010, Federal Law n° 12.349/2010 has expressly included in the wording of article 3 of Law nº 8.666/93,the “promotion of the sustainable national development” among the principles of public biddings.
Among the innovations introduced by said Law, the most relevant one concerns the possibility of imposing, in public biddings,a margin of preference to Brazilianmanufactured products and services.
Therefore, the authoritiesare entitled to choosenational products and services, even if they have a price of up to25% (twenty five per cent) superior to those of foreign products and services.
In order to apply the mentioned marginof preference, several specific requirements must be observed, such as: stimulation of employments and generation of revenue; impacton the tax collection; development and technological innovation in Brazil; additional cost of products and services and; in their adjustments, retrospective analysis of the results.
Suchmargin of preference to national manufactured products and services –to be applied at the bidder entity’s own discretion -may be extended to products and services originated from the Member Nations of the South Common Market– Mercosul.
Another important change introduced by the mentioned Law concerns the order of the tiebreaker criteria in public biddings. In this sense, in case of a tie between bidder companies which are in an equal foot, the criteria used will be the following, by order of preference: products or services produced in Brazil; products or services produced or supplied by Brazilian company;products or services produced or supplied by companies that invest in research and in Brazilian technological development.
The legal provisions brought by Law n° 12.349/2010 were regulated by the Federal Decree n° 7.546/2011, published on 3 August 2011, which is much more conceptual than regulatory. Details regarding the margin of preference and other issues will be detailed in a future Decree, according to the conclusion than can be drawn from the wording of art. 5º of the Decree[1].
Therefore, based on the above, we note that Federal Law n. 12,349/2010 introduced significant rules with the purpose not only to benefit those that supply Brazilian manufactured products and services, but also to stimulate and strength the technological and productive development in Brazil.
The Public Law team of Chenut Oliveira Santiago law firm is at your disposal to clarify any questions on the above.
[1]“Art. 5o. The Decree that establishes the margin of preference shall discriminate the scope of its application and may specify the universe of Brazilian technical rules applicable to product, service, group of products and group of servicesfor the purposes of this Decree.”[:]