In May 2020, the Federal Court of Auditors – TCU, in partnership with the international non-governmental organization Transparency International marked a point in favor of tackling corruption and legal certainty for the federal, state and municipal public managers, by launching a booklet called “Recommendations for Transparency of Emergency Contracts in Response to COVID-19“. The booklet guides those professionals, in face of Act 13,979 / 2020, to adopt accurate and licit practices in the management of public resources in the pandemic scenario.
The document counted on the valuable collaboration of Guilherme France, an experienced research coordinator at Transparency International’s Anti-Corruption Knowledge Center.
The document begins by referring to the obligation of transparency on emergency purchases, within the scope of the Law described above, as follows:
“All contracts or acquisitions carried out under this Act will be immediately made available on a specific official website on the world wide web (internet), containing, as appropriate, in addition to the information provided for in § 3 of art. 8 of Act 12,527, of November 18, 2011, the name of the contractor, the number of his registration with the Federal Revenue of Brazil, the contractual term, the amount and the respective contracting or acquisition process”.
Aiming to guarantee the transparency of such initiatives, the guidance recommends that the website, in addition to allowing the download of all published information prioritizing open formats such as .csv or .json and containing a data dictionary with definitions of concepts used, must:
- contain a content search tool that allows access to information in an objective, transparent, clear and easy to understand language, including keyword search, type of product or service contracted;
- enable the recording of reports in several electronic formats, including open and non-proprietary ones, such as spreadsheets and text, in order to facilitate the analysis of information;
- enable automated access by external systems in open, structured and machine-readable formats;
- disclose in detail the formats used for structuring information;
- ensure the authenticity and integrity of the information available for access;
- keep updated information available for access.
In addition, the guidance recommends that the website should indicate the location and instructions that allow the interested party to communicate, electronically or by telephone with the agency or entity that owns the website. It allows users of this data to ask for clarification or additional information, in addition to offering a mechanism for registering manifestations, with the possibility of anonymity, a link to the Ombudsman and a link to the portal for receiving requests for access to information (E-sic) is recommended.
The document follows suggesting the adoption of the following measures, which would greatly contribute to the prevention and fight against corruption:
- States and municipalities must establish the rules that will guide the bidding and contracting processes to be carried out by their departments.
- There should be provision in the legislation for the creation of an electronic website for the disclosure of information on emergency contracts.
- The relevant federal, state and / or municipal legislation for emergency contracting must be made available on this same portal where information on contracting can be found. These portals must also include information and guidelines for those interested in participating in the bidding and direct contracting processes.
- This legislation should provide for sufficient information to be provided on each emergency contract to allow (i) effective social control over public spending in order to prevent waste, conflicts of interest and other deviations, (ii) the monitoring of efforts to combat to COVID-19, (iii) the comparability between the prices charged to the public administration at different levels and locations.
- This legislation should also establish quality parameters for information, in order to ensure the promotion of transparency and the openness of data in relation to hiring emergency.
- The legislation on emergency contracting must also explicitly give control departments the power to monitor all phases of the administrative processes related to contracting, with a view to allowing them to be carried out quickly and efficiently, ensuring their transparency, preventing corruption and offer greater security to public managers.
- The website referred to in art. 4, §2 of Act 11979 of 2020 should be a specific space, independent or part of a broader transparency portal, for centralized dissemination of information on emergency contracts.
- This website should be prominently displayed on the main state or municipal government websites and on its Transparency Portals, the responsible health agency and the control agency responsible for monitoring those expenses, as well as on the portal, if any, dedicated to information on monitoring COVID-19. It should also be published on social networks and other official government communication channels.
- Purchasing information must be included on the website within 2 working days after the conclusion of the contract or the corresponding expenditure commitment. This site must also inform when it was last updated, in addition to containing the notices and other public phases of the bidding process.
- It is recommended to draw up a list of health related goods, products and services directly addressed to the combat of COVID-19 that can be acquired through emergency contracts, in order to facilitate social control and avoid deviations in the use of this instrument. Alternatively, an explicit endorsement of a list developed by another international entity or organization, such as the World Health Organization, is recommended. These lists may be updated periodically, with justification and record of changes.
A very important aspect of the document is to explain and align the information that should be informed by public managers:
- Name of the contractor and his CNPJ / CPF;
- Total value and per unit;
- Contractual term;
- Number of the contracting process and the full contract and / or the corresponding commitment note;
- Contracting department;
- Description, quantity and type of goods or services purchased;
- Place of execution;
- Date of celebration and / or publication in the Federal Official Gazette;
- Form of contracting;
- Complete and / or main parts of the administrative process that preceded the purchasing.
The guidance also brings up the relevant issue of emergency contracting with a supplier of goods, services and supplies that are declared disreputable or with suspension of the right to participate in bidding or contract with Government, and the justification for this contract should be highlighted on the information portal to which these recommendations refer; as well as, the engagement of suppliers with other administrative or judicial issues must also be justified.
Another issue that is always a matter of concern is the issue of overbilling, due to additions or deletions in current contracts, and the guidance recommends that these occurrences should be included on the specific website for disclosing contracts, with the respective technical justifications and legal instruments used.
A very smart point brought by the guidance is the adoption of a “Covid-19” tag for all expenses incurred in emergency contracts related to it.
Inspection and audits are also advised to take into account not only the emergency, but also the impacts of the pandemic on the economy, considering the imbalance between supply and demand, which may justify exceptional contracting conditions.
The creation of a Transparency and Social Control Commission, made up of representatives of the public sector and civil society, in addition to academics, is highlighted as good practice.
Finally, the guidance recommends the publication of periodic reports, consolidating data and information on emergency contracts and the use of other communication channels such as radio, TV, news sites and social networks to disseminate the above information in simple language and accessible.
It is unquestionable that the adoption of the recommendations brought by this guidance will considerably mitigate the risks of corruption and guarantee greater legal security for the public manager when having to make urgent decisions in an emergency situation.