New rules applicable to the federal Public Administration contracting with suppliers of services – Leal Cotrim Jansen Advogados

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New rules applicable to the federal Public Administration contracting with suppliers of services

The Ministry of Planning, Development and Management has set forth new rules for contracting the supply of services under the regime of indirect execution by the federal Public Administration (direct, autarchic and foundational). Said new rules reveal a concern of the Public Administration about public procurement procedures.

On 26 May 2017, the Ministry of Planning, Development and Management published Normative Instruction No 5 (“IN 05/17”), which defines rules and guidelines for the direct, autarchic and foundational federal Public Administration contracting the supply of services under the regime of indirect execution.

IN 05/17 revoked IN 02/08 (that previously dealt with the matter), and is the result of efforts to comply with determinations of the Federal Audit Court (Tribunal de Contas da União). It aims at improving procurement governance at the federal Public Administration

IN 05/17 is far more detailed than IN 02/08, and brings innovations that reveal a great concern of the Public Administration with the planning of contracting, which concern may be noticed, for example, in the definition of instruments for contractual risk management. Said instruments must be updated in the subsequent phases of the contracting procedure, after each relevant event.

The new regulation also establishes instruments for the control of contractual performance, such as the obligation to implement mechanisms to monitor the use of materials applied, both for inspection purpose and prices comparison in future bidding procedures. IN 05/17 also provides for the inspection by users of public services, consisting of satisfaction surveys to assess the key elements the service’s quality rating.

In addition, the newly enacted rules provide on the amendment of contracts – including their extension, renegotiation and price adjustment –, as well as on the cases of retention of guarantees offered by contractors or of any credits in their favor. IN 05/17 also contemplates several models that should guide the Public Administration in all stages of the contracting procedure.

The full understanding of this new regulation may influence the decision of those interested in participating in bids launched by the federal Public Administration.

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Leal Cotrim Jansen Advogados (“Leal Cotrim”) is firmly committed to respecting the privacy of its members, clients and all individuals whose personal data we collect, store or process in any other way. Any information relating to an identified or identifiable natural person is personal data.

This Privacy Policy guides the processing of personal data by Leal Cotrim and disciplines the exercise of the rights of the individuals whose personal data are processed by Leal Cotrim and/or on behalf of Leal Cotrim. We kindly ask that you read it carefully before providing us with your personal data and every time you wish to know how we use your personal data.

1. How we process your personal data

All processing operations carried out by Leal Cotrim are compliant with the applicable laws, especially Law 13,709/2018 (“Lei Geral de Proteção de Dados”) and Law 8,906/1994 (“Estatuto da Advocacia”).

We only processes your personal data under the following legal basis:

(i) under your consent;
(ii) for compliance with a legal or regulatory obligation;
(iii) for the performance of a contract for the provision of legal services or in order to take related steps prior to entering in such a contract;
(iv) for the regular exercise of rights within a judicial lawsuit, na administrative or arbitral procedure; and
(v) for the purposes of the legitimate interests pursued by Leal Cotrim, except where such interests are overridden by your fundamental rights and freedoms which require protection of your personal data.

Visiting and browsing our website are anonymous. Regarding the use of our website, we only collect the personal data that are provided by you when you use the contact tool available on our website, under your explicit consent.

For your privacy to be preserved, if you forward you personal data to Leal Cotrim in order to be considered for one of our vacancies, they will be securely erased immediately after the recruitment process ends.

In any case, Leal Cotrim only processes the personal data that are necessary to achieve the purpose of the processing, and for the period that is necessary to do so.

2. How we protect you personal data

Leal Cotrim adopts technical and administrative measures to protect your personal data from unauthorized access and from non-intentional or unlawful destruction, loss, modification, communication and dissemination. However, any security incident involving your personal data that may cause you significant risk or harm will be communicated to you and to the National Data Protection Authority – ANPD within a reasonable time.

3. Your rights as data subject

As a data subject, you have the following rights, subject to the provisions of article 7, II, of Law 8,906/94 and article 7, VI, of Law 13,709/2018:

(i) confirmation as to whether your personal data are being processed;
(ii) access to your personal data;
(iii) rectification of your personal data that are incomplete, inaccurate or outdated;
(iv) anonymisation, restriction of processing, or erasure of your personal data that are unnecessary, excessive, or processed in non-compliance with the provisions of the applicable law;
(v) portability of your personal data for the use of another services provider, in accordance with the regulations issued by the National Data Protection Authority – ANPD, subject to the protection of commercial and industrial secrets;
(vi) erasure of your personal data, except in the cases provided for in the applicable law;
(vii) information about public and private entities with which we share your personal data;
(viii) information about the possibility of not providing your consent for the processing of personal data and about the consequences of the refusal;
(ix) withdrawal of your consent, subject to the public interest that may justify the processing to continue or the existence of another legal basis that authorizes it; and
(x) opposition to any processing of personal data based on one of the legal basis that do not require consent, provided that there has been a breach of the applicable law, and subject to the public interest that may justify the processing to continue.

4. How you can exercise your rights

At any time, you can exercise your rights as a data subject by sending a request to encarregado@lealcotrim.com.br. Following confirmation of your identity, your request shall be answered within the legal term or, in the absence of a legal term, within a reasonable period.

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5. Changes to this privacy policy

This Privacy policy was drafted in accordance with the current laws and may be modified to better suit the applicable laws and regulations. Any changes to this Privacy Policy will be effective as of the date indicated below.

01 December 2020