Compliance in the contracting of products or in the provision of services within the scope of public administration, an important tool in combating acts of administrative misconduct

ORIGINAL ARTICLE

ROCHA, Alan Pierre Chaves ^[1]

ROCHA, Alan Pierre Chaves. Compliance in the contracting of products or in the provision of services within the scope of public administration, an important tool in combating acts of administrative misconduct. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 06, Ed. 07, Vol. 04, pp. 74-95. July 2021. ISSN: 2448-0959, Access Link: https://www.nucleodoconhecimento.com.br/law/important-tool

ABSTRACT

This is an academic article which researches the possibility of carrying out an integrity and compliance program in the context of public contracts, based on the systematic interpretation of the legal system. Compliance, originally considered an excellent tool for controlling the acts of legal entities governed by private law, has gained strength in the control of public contracts, with the objective of bringing obedience to legal dictates and preventing acts of administrative improbity and crimes against the administration. In this perspective, the methodology used in the research will be descriptive, qualitative and bibliographical, in order to address the issue of compliance in public administration, demonstrating the results achieved, at the national level, with the increasing adoption of the measure – by law – in various entities of the federation, following the trends of the theme.

Keywords: Compliance, Public Procurement, Systemic Constructivism.

1. INTRODUCTION

In recent years, Brazil has been passing on several discoveries of unjust acts, related to a web of criminal conduct, in the context of government spending, with hiring through fraudulent bids, payment of bribes, acts of corruption – of all kinds – and the use of diverted resources in the financing of political groups, which has beset the country and required maximum efforts of the authorities responsible for combating the acts of public administration.

In this tuning stick, several anti-corruption measures have been studied by the experts of the subject, which meet the character not only repressive, but also preventive, so that possible conducts capable of generating losses for the public administration, with the favoring of political or business groups, always aiming at the rational and efficient handling of public resources for the collective good.

In this desiderato, a good policy of ethics, corporate governance, transparency and compliance, on the part of the individual in contracting with the Public Power, has become an excellent instrument to assist in the control of the acts of public administration, competing with the private initiative, in partnership with the administration, the application of compliance and anti-corruption policies in the corporate sphere, in a complementary way to the Comptants, the Courts of Auditors and the Public Prosecutor’s Office, which is made possible with the systematic analysis of the legal system.

In the sayings of Rodrigo Pinho Bertoccelli:

we are witnessing a fertile period of global reflections on the transparency and integrity of the conduct of public and private agents, due to the undeniable corruption scandals in the world and their harmful economic and social effects, while observing the need to reduce the incentives of political and economic websites to corruption, while the term compliance becomes increasingly present in newspapers and in the reality of companies. (BERTOCCELLI, 2021, p. 39)

In the lessons of Flávia Campos Sousa:

It is not a question of exempting the State from its duty of pursuit and combating corruption, or a good ness given to the unsubstantiated agent, since the conclusion of the adjustment commitment is only the obligation to fully repair the damage suffered;  to transfer or return, free of charge to the injured entity, the assets, rights or values acquired with the infringement;  to cease the unlawful conduct of offering guarantees for the payment of the civil fine, reimbursement and transfer. (SOUSA, 2020).

The term Compliance originates in the English dictionary, equivalent to the expression conformity, depending on the verb comply, which means to act according to the rule, that is, to be in accordance with the legal and regulatory dictates, internal and external. This practice arose from the business need to maintain greater control and compliance with regulatory guidelines, in search of excellence in the management process, all in order to prevent possible non-conformities.

In this opinion, this academic article aims to demonstrate the possibility of compliance, as an instrument that aims at excellence in management and obedience to legal and regulatory dictates to be admitted, with the support of a systematic constructivist interpretation, within the scope of public administration, as an auxiliary instrument for the control and prevention of acts of administrative misconduct and in the fight against crimes against public administration.

To this end, the methodology used in the research will be descriptive qualitative and bibliographic, aiming to study compliance from its origin, evolution and current applicability, through the analysis of foreign law, in a comparative way, of the existing doctrine, and its import into the national scenario, indicating existing legislation in some units of the federation that has recognized the institute as an auxiliary element in combating illicit acts, especially under the constructivist interpretation of the legal system.

2. A BRIEF HISTORICAL FOREST ABOUT COMPLIANCE

As mentioned elsewhere, compliance, integrity and compliance enforcement policies are recent institutes, started in the last century, notably in the United States, as a way of providing greater rigidity and security to the corporate acts of multinationals, in search of efficiency, compliance legislation and seeking to reduce business risks.

We point to the Hague Conference in 1930 as the initial framework of compliance measures with the establishment of the Bank of International Settlements, based in Switzerland, with the aim of conducting coordinated cooperation between central banks and reducing risks, bringing security to activities. As observed, banking activity and concern in the lawfulness of the movement of wealth by nations have led to the need for greater control of operations around the world.

In the 1960s, the Security Exchange Commissions (SEC) – guided the hiring of compliance officer programs in view of the need to create a standard of internal procedure for controlling, training, monitoring and supervising activities that showed signs of illegality. be followed by companies that trade their shares on the American stock exchanges.

Since then, the application, by the private sector, of efficient techniques of ethics, transparency, corporate governance and compliance, as internal policies to prevent misconduct and corruption has proved to be an efficient instrument to control the legality of public administration acts. Institutionalization has had origins and application since the “Foreign Corrupt Pratices Act” of 1977 in the United States, in the well-known package of public policies to combat corruption, determining that companies maintain an adequate system of internal control.

In the same decade of 1970, due to the Watergate scandals, the FCPA (Foreign Corrupt Practice Act), the main American reference in terms of anti-corruption, was approved by the American Congress. From then on, the American government began to intensify control over the activities of companies not only internally but also around the world. Any company that trades its shares on US stock exchanges or local companies with operations abroad could be the target of investigations and, consequently, sanctions by the FCPA. (COLARES, 2014. p. 61).

In 1988, with a series of financial scandals in the “wall street“, such as the Madoff and Siemens case, the United States enacted strong financial monitoring measures, through the “insider tranding and Securities enforcement Act“, demanding greater rigor from companies that they operated their shares in the American financial market, which established the need for strong corporate measures to minimize risks.

We observed a combination of isolated and independent facts, including, effected in different times, which together were tracing the business need to foster greater control of acts, in order to promote adequacy to legal dictates and effect quality management, reducing the negative impact of possible measures contrary to legislation.

The global trend, accompanied by technological evolution and the speed of data and information traffic across the globe, has even demonstrated the need to adopt a digital compliance model, in order to promote adaptation to the legislation in force in the European Community – of data protection -, which ends up having impact around the world.

Thus, a constructivist interpretation of the system, from the communication, authorizes us to adopt compliance measures in contracts with the public authorities, in order to mark with force cogent their application in the purchases of products and services, forming an interpretation of the legal system that desague in its obligation, by the pragmatism of legal and regulatory commands, which we will demonstrate.

3. THE ADOPTION OF COMPLIANCE IN BRAZIL

As we mentioned in this scientific research, after the “break” of the New York Stock Exchange in 1929, the international market has adopted preventive measures against fraud since the 1930 Hague Convention, the responses required by the Securities and Exchange Comissions in 1960, the creation of the Banking Regulation Committee, the conclusion of the Basel Agreement in 1988, the Inter-American Convention Against Corruption and the Convention on combating corruption of foreign public officials, which reflected, from the 1990s, the action taken on the Brazilian scene.

According to Mark Weber:

international legal documents and regulations from the United States and the United Kingdom, as well as the good practices of the OECD, thus exemfurther as important normative standards that may make the necessary contribution to the interpretation and application of compliance programs that the new Brazilian anti-corruption law deals with, both in the preventive aspect, by providing a parameter in the formatting and structuring of programs, as well as in the repressive aspect, by drawing useful guidelines in the application of appropriate sanctions in cases of violations. (WEBER, 2018, p. 79).

This influence is now noted from the approval of Law No. 9,613/98, which provides for the Crimes of Laundering or Concealment of Assets, Rights and Values, the Prevention and Use of the Financial System for Illicit And creates the Financial Activities Control Board (COAF), with the objective of repressing, initially, the circulation of financial assets arising from certain criminal activities, such as drug trafficking, corruption, terrorism, among others, subsequently reformed to inhibit the circulation of illicit resources from any criminal activity.

At the same time, in 2003, the United Nations ratified, with the agreement of 178 Member States, rules against corruption, having been internalized by Brazil through Presidential Decree No. 5,687/06, which established criteria and strategies to prevent harmful and criminal acts of corruption, with the coordinated joint action of nations in the supervisory activity.

In the lessons of André Luiz Callegari and Ariel Barazzetti Weber:

the first form of transnational accountability is group pressure through monitoring. A great example of this is GAFI – FATF, which reports on countries and their state of commitment to combating money laundering and terrorist financing, creating pressure on their reporting that can also cause financial and investment-grade losses. These new data and new forms of accountability have brought a new way of thinking about citizenship and the role of civil society and its representatives. Even the expansion of legal consciousness occurs. (CALLEGARI, 2017, p. 160).

There is also, internally, the law of administrative improbity no. 8,429/92, with the sanctions imposed on public officials and individuals who, in collaboration, in the exercise of the mandate, office, employment or function practice acts that lead to illicit enrichment, damage to the money or offense to the principles of the administration, enabling the application of penalties for the suspension of political rights, the application of fines, the obligation to pay compensation to the fund, and the prohibition of hiring with the public authorities, among other measures, to the improbo agent or individuals who are related to the dictates of the law.

According to Aloísio Zemmer Junior:

the law lists what should be understood by administrative improbity, give the impossibility of the semantic sum miscellaneous to overtake the normative. Improbity is characterized when the conduct fits the legal hypothesis, that is, when it is typical, inthe middle of the legally provided sanction. There is no improbity when the conduct analyzed is outside the field of incidence of the combination of principles and rules discriminated in the legal framework – always understanding for the context a restrictive interpretation for the meaning of the indeterminate legal concepts that integrate the legislation in reference for the determination and triggering of eventual punishment. (ZIMMER, 2018, p. 144/145).

On administrative morality, Emerson Garcia teaches:

it should also be emphasized that although it does not keep sinonia with the principle of legality, administrative morality presents a relationship of continence with the principle of juridicity, which covers all the rules and guiding principles of state activity. Violated the principle of administrative morality, tainted will be the principle of juridicity, which reinforces the use of this as a parameter for identifying acts of improbity. (GARCIA, 2017, p. 139).

Similarly, other legal diplomas such as the General Law of Bids n. 8,666/93, which establishes general rules of contracting with the Public Power, law no. 12,527/11 of access to information, which aims to effect the transparency of public acts, and several other laws have brought measures to be adopted nationwide, with the objective of disciplining greater control of the acts of managers, in the handling of public funds, in view of the worldwide trend of combating corruption.

In this scenario, there is also law no. 12,850/13 that defines criminal organization and provides for criminal investigation, means of obtaining evidence, related criminal offenses and criminal procedure and establishes the legal rule of treatment of the organized crime phenomenon in the Brazilian nation.

Law no. 12,846/13, in turn, complemented national norms by discipsing the civil and administrative liability of legal entities for the practice of acts against the public administration, national or foreign, without excluding the individual responsibility of managers and administrators and natural persons authors, co-authors or participants of the illicit, including, with the provision of exclusion/minimization of responsibility through the adoption of prevention and integrity policies.

Marcos Assi discusses:

with the publication of the anti-corruption law, n. 12.846/2013, in Brazil, compliance issues became more evident and left companies more exposed regarding the process of implementation of conduct and ethics policies that should be applied together with the human resources area and senior management, because we should always improve the way of conduct of businesses, organizations, their managers and employees. (ASSI, 2017, p. 39).

Professor Guilherme de Souza Nucci, in turn, has:

moreover, for the establishment of a fair sanction, we agree with the idea that the internal mechanisms and procedures of integrity, audit and incentive to the denunciation of irregularities and effective application of codes of ethics and conduct within the framework of the legal entity of which the standard deals relate to the compliance function. (NUCCI, 2015, p. 160).

Professor Odete Medauar discusses:

there has been reference to governance since the 1990s, including in international documents and bodies (e.g. world bank and IMF). But only in the inic decades of the 21st century has it been cited with breadth in the literature of administrative law. While there are high-definitions of governance, in recent times common points have been established in the characterization of governance. In general, governance is associated with participation, regulation and consensus, three topics ventilated in this book. (MEDAUAR, 2017, p. 359)

Also, on the subject, the author Glaucia Oliveira Melo states that:

Part of the criticism of the consensus in the improbity stems from the absence of normative regulation of the procedure. In other people, the administration would lack legal certainty as to how to carry out such a transaction or even the durability of the agreement, in the face of a possible variation of future understanding. However, the absence of specific legal regulation should not be regarded as an obstacle. Indeed, although legal provision is desirable, it seems possible to regulate the procedure or even borrow the rules of similar procedures, such as the LINDB or Anti-Corruption Law procedure. (OLIVEIRA, 2019, p. 121).

Compliance and compliance measures, however, began to gain national notoriety from the scandals arising from the lava-jato operation, which identified a scheme for the diversion of public resources installed under Petrobrás, federal public company of Capital Aberto, to favor political groups, a fact that motivated the adoption of policies of risk prevention, compliance and integrity by legal entities, to obtain positive impacts on the market.

As Emerson Gabardo and Gabriel Morettini Castela:

However, it is important to note that compliance is not limited to an institution’s internal control systems to manage risks and prevent any illegal operations, which may culminate in embezzlement to customers, investors and suppliers. The compliance institute can be divided into two fields of activity: one, of a subjective order, which comprises internal regulations, such as the implementation of good practices inside and outside the company and the application of mechanisms in accordance with the legislation pertinent to its area of operation, aiming to prevent or minimize risks, illegal practices and the improvement of its relationship with customers and suppliers. Otherwise, the second field is objective, bound by law, as is the case with Articles 10 and 11 of Law 9.613/1998 (Money Laundering Law). (GABARDO; CASTELA, 2015, p. 135)

Currently, in the field of objective action, business integrity and compliance measures have focused not only on the prevention of crimes against public administration, but also extended to the fiscal, environmental, labor, digital, and many other measures that require a broad technical knowledge about various areas from the program coordinator.

The ISO 37001 certification, developed by the “International Organization for Standardization“,combined with compliance with internal and external legal and regulatory dictates in the corporate sphere, has assisted in proving an efficient and effective anti-bribery compliance program, identifying a risk management standard to help organizations in the fight against corruption, with the establishment a culture of integrity, transparency and compliance.

It is based among professionals in the area that a good and efficient compliance program must take into account some pillars of support, without which the objectives remain impaired, as a way to bring acceptance and credibility of the public, and to provide greater security to internal business relations and with external partners, which we have briefly addressed.

Marco Aurélio Borges de Paula and Rodrigo Pironte Aguirre de Castro teach about the seven basic elements of compliance:

are basic and necessary elements of compliance: the commitment of senior management; the creation of reference policies, procedures and controls; implementation of an effective communication and training program; evaluation, monitoring and auditing; implementation of disciplinary measures and relevant actions, adequacy in the delegation of responsibilities and continuous improvement. (PAULA; CASTRO, 2020, p. 103).

On the subject, Gustavo Justino de Oliveira and André Carvalho discuss that:

The combination of all these competencies is fundamental, because a robust compliance program (obtained in the sphere of Accounting and Law) needs to be incorporated by senior management, through tone at the top (which is related to the area of Administration), and have a good adherence among employees (here we can see the importance of Psychology). This is the challenge, therefore, of a professional in the area to be attentive to all these nuances, so that there is really an ethical culture and compliance within the organization. (OLIVEIRA; CARVALHO, 2018.)

It is necessary to support and participate in the company’s management bodies, with the participation of a professional specialized in compliance, responsiblefor implementation, so that there is the promotion of an adequate assessment and mapping of the risks caused by the business activity, in addition to the presence of a code of ethics and efficient conduct, to be followed in all spheres of business administration.

It is also necessary to have active and trained internal control sectors, with the creation of mechanisms that ensure the minimization of risks, with the constant promotion of training of professionals and the creation of secure communication channels, especially active reporting channels that establish the direction of information.

It is necessary, in continuation, the adoption of internal investigations to identify and investigate evidence of unethical and illicit behavior, with the taking of the necessary arrangements, culture that should be extended to all the company’s contracts, with the application of “due diligencie” in contractual relations, and a constant system of audit and monitoring.

As we have demonstrated, the application of a business policy of ethics, integrity and compliance has been increasingly charged in business activity, as a way to inhibit illegal conduct, an instrument that in our view should be extended to contracts with the Public Power, including, as a way of preventing acts of administrative misconduct and crimes against the public administration , in search of efficient management of public resources.

4. COMPLIANCE IN PUBLIC ADMINISTRATION

The irrational and misdest use of public resources has long proved to be the great bottleneck of a nation’s economic and social development. In the Brazil scenario, studies conducted in 2016 by the World Economic Forum pointed to the country as the fourth most corrupt nation in the world, second only to Chad, Bolivia and Venezuela.

Members of the Lava Jato Task Force estimate that Brazil wastes R$ 200,000,000,000 (two hundred billion reais) per year, due to the diversion of public resources, according to a study published in the international observatory, based on an investigative report issued by the Federal Police Department, values that could be used in public health policies, education , public security and assistance, among others.

In order to inhibit immedial and criminal practices, the strengthening and specialization of the control bodies of the management of public funds are essential, increasingly with the need for a work not only repressive, but preventive of misconduct that generates damage to the money, illicit enrichment and offense to the basic principles of the administration.

Thus, the Public Prosecutor’s Office, the Internal Control Bodies – Comptitudes -, the Courts of Auditors and the Powers Constituted must be diligent and undertake maximum caution in the supervision of acts of public power, embodied in the management of public funds, so that there is adequate and rational use, in the public interest, aiming to prevent illegal conduct and promote the effective recomposition of assets in case of injury to the treasury.

The public entity and legal entities, in addition to standard instruments for investigating and restraining acts of administrative misconduct and crimes against public administration, may have integrity and compliance programs to be applied in government spheres, as an effective instrument for risk analysis and prevention of misconduct.

According to Renato Santos and Arnaldo José Amorim:

In the tradition of Weber(32), norms are necessary instruments for legitimate power. Corporate compliance programs, such as a code of ethics, are presented as a way to influence the individual conduct expected by the leader in relation to his or her subordinate. The approach with a normative emphasis (compliance-based) is more common in traditional, hierarchical and centralizing organizations. More par – ticipative organizations, whose management emphasizes culture as a source of attitudes (values-based), tend to privilege awareness and education actions to reinforce individual ethics and values. (SANTOS; GUEVARA, 2012).

Under administrative law, not unusual, public companies and mixed economy society – because they compete on equal terms with the private individual, and exercise economic activity of general interest – were the first members of the public administration to adopt integrity and compliance policies in their government platforms.

And it could not be different, because, as stated above, these legal entities compete equally with the private one for a market share, in search of maximizing profits and efficient results, including capitating financial resources with the trading of their shares on stock exchanges, and should, by tendency, a logical trend of the market, apply policies to minimize business risks.

In this conjecture, the programs of ethics, corporate management and compliance within the state justifies the investor’s capital, endowe him with legal certainty and reducing possible losses in the trading of securities, in the same way that it has been working to the private initiative. An efficient compliance program brings the reliability that the state company needs in the market, favoring transparency and control.

The application of compliance practices within the scope of direct administration, in turn, still suffers doctrinal and practical resistance, some understanding that such measures would not be in line with the public administration, which has a high decision-making burden linked to legal parameters, and, from the point of view of these opponents, integrity techniques would be removing the legitimacy of the decision-making power in the administrative sphere.

They also understand, as a justification of resistance to the applicability of integrity rules in direct public administration, the existence of internal and external organs to control administrative acts, such as the Controllership, the Courts of Accounts, and also the Public Prosecutor’s Office, which would result in lack and inefficiency of any compliance programs in direct administration.

With due respect to the management activists who are profiled in this current, in our view an efficient and adequate program of compliance and compliance in the administration finds constitutional guardhouse, in the democratic principle, in its aspects of representation and participation in the decision-making acts of public administration. Thus, contrary to what is advocated in opposition, integrity policies give greater legitimacy to administrative acts.

Equally, it is up to us to reject the argument that the existence of internal and external control bodies of the administration would make it unnecessary to adoption a compliance program, and for more than one reason. The one: the existence of these control bodies never inhibited, in full, deviation of conduct in the administrative scope. Two: for cultural reasons, these organs act predominantly in the posterior and repressive control of administrative acts. Three: a policy of integrity and compliance would be another auxiliary instrument in the search for excellence in the management of public funds.

And the above argument is made, considering that the internal and external control bodies act, almost in all cases, when there has already been the improper application of public resources, not having instruments capable of promoting preventive control of the acts of administration. Moreover, the democratic principle, combined with the duty of probity and administrative morality, calls for effective prior control that inhibits acts of administrative misconduct.

Furthermore, the United Nations Convention Against Corruption, materialized in Brazil through Decree No. 5,687 of January 31, 2006, in its article 12, determines that States Parties, in accordance with the principles of domestic legislation, will adopt preventive measures against corruption. This provision is in line with the democratic principle, legitimizing the adoption of corporate governance policies in public administration.

Another point that deserves to be welcomed would be how to materialize the application of an efficient compliance program. We argue, at first, that they cannot, at least in the case, the compliance programs be carried out by the members of the control bodies indicated above, otherwise they are not faced with a legitimate compliance program, but rather of actions of control typical of these organs.

In this wake, integrity programs in direct public administration should be, in our view, carried out by specialized and qualified companies, contracted through a bidding procedure, considering the preventive nature of the activity and functioning as a reporting issuing body where possible deviations of conduct in the public administration are pointed out, and indicate the most efficient, speedy and economical ways of practicing administrative acts and contracts in accordance with the law.

It is important to emphasize that although it can generate an extra cost to the administration, it is premised that the hiring of an efficient service will promote savings, coibá possible illegal conduct and avoid wasting public resources, and greater efficiency of public acts, besides that, as seen in the administrative practice, the hiring of accounting and law firms has proved to be a routine practice , which does not prevent the specialty compliance service from being provided by these professionals, provided that proven qualified.

Renato de Almeida dos Santos, in his master’sthesis “compliance as a mitigation tool and organizational fraud” defended at PUC/SP, mentioning Schilder (2006), discusses:

There are studies that analyze the cost-benefit of an implementation of compliance programs in organizations, which have concluded that for every U$ 1.00 (one dollar) spent, $5.00 (five dollars) is saved by mitigating legal proceedings, reputational damage, and loss of productivity. (SCHILDER, 2006).

Furthermore, the adoption of integrity and compliance programs end up undrowning the excessive number of procedures existing in the control bodies – Court of Auditors, Comptants and Public Prosecutors – reducing the demand and allowing their dedication to materially more serious facts of administrative misconduct and corruption, maximizing the results.

At the same time the adoption of governance programs within the public administration, there is still nothing to prevent this policy from being charged to the individual who contracts with the government, as technical qualification requirements under the relevant bidding procedure, as a measure that strengthens the control of administrative and anti-corruption contracts, which we will address in the following topic.

5. COMPLIANCE IN CONTRACTING WITH THE GOVERNMENT

Initially, it should be made clear that there is no obligation on the national scene of companies that contract with the Public Power to adopt a corporate Governance and Compliance program, including some authors indicate that regulations in this sense would be hurting the constitutional principle of “nemo tenetur se detegere“, since in the legal rule of law no one is obliged to produce evidence against them.

Despite this doctrinal position, we understand the possibility of making it mandatory for companies to present an integrity program in contracts with the Public Power, based on the aspect of sanctioning administrative law, and supported by the constitutional principles of administrative probity, efficiency and economics and the duty of loyalty and good faith that is expected in relations with the Public Power.

Moreover, there is no need to speak of offense to the principle of non-culpability, since compliance programs act preventively, demonstrating the best paths to be taken in decision-making acts, in order to avoid offense to internal and external regulations, as well as deviations of conduct that may configure crimes or acts of misconduct. Thus, in fact, integrity programs act, at least in the stake, avoiding illicit practices.

Unquestionable advantages depending on an efficient compliance and compliance program, with procedural and procedural benefits in case of misconduct, which serve as mitigating administrative and criminal infractions for managers, enabling the minimization or elimination of the liability of the legal entity, through the commitment made by the latter in the adoption of appropriate internal measures to prevent and repress acts considered illegal.

Débora Motta Cardoso, in her doctoral thesis defended at USP called the extension of compliance in criminal law: critical analysis from the perspective of the money laundering law, says that:

In this scenario, compliance becomes a tool that goes beyond the limits of the mere supervision of the procedures adopted and implemented within the scope of internal controls, in addition to becoming an important instrument for the prevention or investigation of the practice of illegal activities in banking activities. These characteristics, on the other hand, if omitted, whether this willful or culpable omission, can generate criminal legal consequences to the person responsible for compliance, as we will see below at the central point of this work. (CARDOSO, 2013, p. 50).

Marcelo Zenker discusses:

government integrity therefore requires a permanent interaction between civil servants and citizens, not just something that is temporarily established in specific actions, as is the case with corruption. The necessary confidence for continuous interaction to materialize depends on the existence of an integrated set of laws and an organized, efficient, complex and multisectoral institutional structure capable of ensuring the absorption of integrity ideals by public agents and citizens. (ZENKER, 2020, p. 187/188).

As is already a compromise, Decree No. 8,420 of March 18, 2015, which regulates law no. 12,846/13, in its art. 41 stipulates that the compliance program to be applied must consider the characteristics and current risks of the activities of legal entities, to ensure constant improvement and adaptation in search of effectiveness. The regulation shows the tendency to consider compliance programmes as an efficient measure to inhibit the commission of business crimes.

This normative act made available a specific chapter to discipline integrity programs, considering that they should contain the set of internal mechanisms and procedures of integrity, audit and incentive to denunciation, in the application of the code of ethics and conduct, with the aim of detecting and resonating deviations, frauds, irregularities and unlawful acts committed against the public administration , national or foreign.

The normative act establishes evaluation parameters, such as the commitment of the senior management of the legal entity, the adoption of standards of conduct and ethics extended to third parties in collaboration, periodic training, periodic risk analysis, reliable accounting records, procedures to prevent fraud and illicit in bidding processes, the independence of internal instantiations , the existence of channels of denunciation, transparency, continuous monitoring, among others.

Thus, it is observed that the national legal rule recognizes the importance of the compliance program to inhibit criminal practices and acts of administrative misconduct, having detailed on the legal regime of integrity programs, focusing on fraud prevention in bidding processes and the contracting of products or services by the Public Power.

This legal rule, in our view, reinforces what we have been advocating during the preparation of this academic article: the need for the adoption by federal entities of an adequate and efficient program of ethics, transparency, corporate governance and compliance by the individual who hires with the Public Power, as an auxiliary anti-corruption measure.

In this scenario, it becomes salutary that the bidding procedures insert the obligation to prove a strong integrity program, in the qualification phase, which could be demonstrated by the presentation, along with the mandatory documents, of obtaining iso 37.001 certification, which demonstrates the existence of an anti-bribery and compliance system of excellence.

In the Federal District, Law No. 6.112/18 that regulates the integrity program by legal entities that enter into a contractual relationship of any kind with the Public Administration, in all spheres of District Power, determines the mandatory implementation of an integrity program for legal entities that enter into a contract, agreement, concession or any other form of agreement with the federal entity in an overall amount equal to or greater than R$ 5,000,000.00 (five million reais).

Article 12 of said district legislation establishes that the company must sign a declaration of the existence of an integrity program at the business level, at the time of contracting with the Government, incarcerating a daily fine of 0.08% of the contract, until the proof of the implementation of the program. We observed that despite the mandatory integrity program, the sanctions for non-compliance with the requirement, in that federation unit, are very flexible, being possible to exclude fines when implementing the program.

In Rio de Janeiro, law no. 7,753 of October 17, 2017 makes it possible to take up an integrity program for companies that contract with the state public administration in the amount of R$ 1,500,000.00 (one million and five hundred thousand reais) for engineering works and services, R$ 650,000.00 (six hundred and fifty thousand reais) for purchases and services with a term of 180 (one hundred and eighty) Days.

The Fluminense legislation, of equal luck, determines that proof must be made at the time of contracting with the Public Power, and must be included in the tender notice the requirements of the law, which entails the impossibility of contracting in case of non-compliance, in addition to the application of a daily fine of up to 0.02% of the contract.

In the State of Santa Catarina, law no. 17,715/19 was approved, which regulates the integrity and compliance program of the state public administration, expressing the commitment to combat corruption, being possible the designation of an executive body to monitor the integrity program, depending on the complexities of the attributions or the size of the organization. We emphasize that the legislation of the state of Santa Catarina determines the implementation of compliance in the very structure of public administration, silencing the need for the adoption of the program by individuals.

Fernanda Schramm, professor of law at UFSC, in a column published in the Journal of State Law, on the above-mentioned legislation sat:

The weightings related to ISO and other certifications issued by third parties would reverberate in the aforementioned diplomas if the presentation of minimum quality standards for the compliance program was required. The legislation could, for example, determine that companies prove the existence of the “Pro-Ethics” seal, an initiative of the Ministry of Transparency and Comptant General of the Union (CGU), in partnership with the Ethos Institute, which assesses the effectiveness of compliance programs of legal entities under private law. In this case, as the evaluation of the “Pro-Ethics” is annual, companies that did not have the seal beforehand would be unable to compete for the dispute, which would make the requirement abusive and compromise the choice of the most advantageous proposal, the first end of the bidding. (SCHRAMM, 2018).

We dare to disagree with the illustrious Professor, with due verification, since the companies that contract with the Government must obtain, in advance, all the necessary documentation for participation in the event at the time of qualification of proposals, as a general rule, including the presentation of other legal documents, such as accounting, economic and technical capacity , among others, and such facts have never brought losses in the choice of the most advantageous proposals, on the contrary, it helps in the choice of the most qualified company.

Furthermore, for the requirement of certifications to legal entities in contracts with the public administration, for reasons and to avoid possible arguments of offense to equal opportunities in the participation of the event, federal entities must promote a longer period of “vacatio legis“, so that the legislation comes into force and applicability in a timely manner to promote the necessary adaptations and qualifications.

As can be seen from the above-mentioned data, several Federative States have regulated, within the scope of their legislative powers, the obligation of an integrity and compliance program by the companies that contract with the Public Power, a fact that demonstrates not only a tendency to be followed, but the concern and importance of an efficient compliance program in the prevention of acts of administrative misconduct and crimes against public administration.

In this wake, we also believe that it is possible for the municipalities to issue the law that regulates the matter, considering the patent local interest that permeates the contracting of products and services by the said public, being cautious only with regard to the minimum values of hiring, which must comply with proportionality criteria according to the financial power of the municipality , so that there is no unfeasibility of competition in bids.

The Federal Government is also responsible for regulating the matter in the context of its contracts of products and services, in a broader way, considering the large public amounts involved in the bids of this federated group, and the relevant national interest in the regulation of the matter, as a way to inhibit the practice of unreasonable and delitive acts in contracts that involve greater risks to the fund.

However, I take a more restrictive position with respect to the timing and form of proof of the adoption of integrity and compliance programs by the interested party in contracting with public entities, and, in our view, this requirement should be considered as a qualification criterion in the event, with the display of ISO NBR 37.001, or similar certification, avoiding, therefore, that any bidding procedure remains at the end impaired by the absence of compliance with this requirement by the adjudicator.

6. CONCLUSION

As widely demonstrated in the present academic work, the public interest is increasingly calling for efficient measures to combat acts of administrative misconduct and crimes against public administration, which has generated undue illicit enrichment to individuals and public officials, invaluable damage to the public and ordered a series of offenses to basic principles of public administration , facts that create obstacles to the economic and social development of the country.

Thus, the need for structuring the internal and external control bodies – Controllership, Courts of Auditors and public prosecutors – has long recognized, easing them with greater independence, autonomy and physical and technological structure, essential to the repression of illegal acts and the application of appropriate sanctions to cases.

However, in addition to the efficient repressive control of illegal acts, we recognize as essential the adoption of preventive measures of risk analysis – as an excellent ally in combating acts of administrative misconduct – with the execution of an appropriate program of ethics, corporate governance, transparency and compliance by the partners / contractors of the Public Power.

With this, we demonstrate that some states of the federation have been disciping, within the scope of their legislative powers, rules that establish the mandatory application of integrity, compliance and compliance programs by the Legal Entity for contracting with the public administration, including providing for the application of high fines in case of non-compliance.

In our opinion, all federal entities should discipline the matter, by its laws, making mandatory compliance by contractors, as an efficient measure of preventive control of the acts of public administration, inserted in an anti-bribery policy, based on the democratic principle, under the aspects of representation/participation, in search of full satisfaction of the public interest.

We argue, nevertheless, in this academic research, that the proof by the legal entity of the adoption of an efficient program of integrity, compliance and compliance should take place during the bidding procedure, with the demonstration of effective evidence elements, such as the display of iso NBR 37.001 certification, or similar document, in the qualifying phase of the event, in view of the principle of efficiency and economics of the acts of public administration.

Thus, we conclude by the perfect harmony of constitutional rules with the obligation of an ethics program, transparency, corporate governance and compliance by legal entities contracted by the public administration, as a preventive and effective measure, assist in combating acts of administrative misconduct and crimes against the public administration, in order to inhibit misconduct and allow other internal and external control bodies the necessary specialization and dedication to the effectively serious cases that must be pursued in the civil, administrative and criminal spheres.

REFERENCES

ALTAMIRANO, Claudia. Brasil é o 4º país mais corrupto do mundo, segundo Fórum Econômico Mundial. Jornal El País, Cidade do México, 2016. Disponível em: <https://brasil.elpais.com/brasil/2016/10/03/internacional/1475517627_935822.html>. Acesso em: 08 dez. 2020.

ASSI, Marcos. Governança, risco e compliance: mudando a conduta nos negócios/ Marcos Assi – São Paulo: Saint Paul Editora, 2017.

BERTOCCELLI, Rodrigo Pinho. Manual de Compliance / coordenação André Castro Carvalho, Tiago Cripa Alvim, Rodrigo Bertoccelli e Otavio Venturini. – 2 ed – Rio de Janeiro 2021. Pag 39.

BRASIL, STF. REsp 1.601.555-SP, Rel. Min. Ricardo Villas Bôas Cueva, por unanimidade, julgado em 14/2/2017, DJe 20/2/2016. Complancie como requisito para indenizações de seguros de D&O, exceto casos dolosos.

CALLEGARI, André Luís. Lavagem de dinheiro / André Luis Callegari, Ariel Berazzetti Weber – 2 ed. rev., atual. e ampl. – São Paulo: Atlas, 2017. Pag. 160 .

CAMPOS SOUSA, Flávia. O controle (não)consensual dos acordos firmados na fase inquisitória e preparatória à ação de improbidade administrativa. Revista de Direito Administrativo e Gestão Pública, 2020. Disponível em: <https://indexlaw.org/index.php/rdagp/article/view/6479/pdf>. Acesso em: 12 out. 2020.

CARDOSO, Débora. A extensão do Compliance no Direito Penal: Análise crítica na perspectiva na Lei de Lavagem de Dinheiro. Faculdade de Direito da USP, São Paulo, 2013. Disponível em: <https://teses.usp.br/teses/disponiveis/2/2136/tde-01092016-150723/publico/Debora_Motta_Cardoso_Extensao_do_Compliance.pdf>. Acesso em: 08 dez. 2020.

COLARES, Wilde Cunha. Ética e compliance nas empresas de Outsourcing. Instituto de Ensino e Pesquisa, São Paulo, 2014. Disponível em: http://dspace.insper.edu.br/xmlui/bitstream/handle/11224/1238/Wilde%20Cunha%20Colares_Trabalho.pdf?sequence=1. Acesso em: 19 de junho de 2021.

GABARDO, Emerson; MORETTINI E CASTELLA, Gabriel. A nova lei anticorrupção e a importância do compliance para as empresas que se relacionam com a Administração Pública. Editora Fórum, Belo Horizonte, 2015. Disponível em: < https://www.editoraforum.com.br/wp-content/uploads/2015/08/lei-anticorrupcao-compliance.pdf >. Acesso em: 07 dez. 2020.

GARCIA, Emerson. Improbidade Administrativa / Emerson Garcia, Rogério Pacheco Alves. – 9. Ed. São Paulo: Saraiva, 2017. Pag. 139

GARCIA, Maria Fernanda. Até quando? Brasil perde R$ 200 bilhões por ano com corrupção. Observatório do terceiro setor, 2019. Disponível em: https://observatorio3setor.org.br/noticias/ate-quando-brasil-perde-r-200-bilhoes-por-ano-com-corrupcao/. Acesso em: 17 de junho de 2021.

MEDAUAR, Odete. O direito administrativo em evolução – Odete Medauar. – 3. ed. – Brasília, DF: Gazeta Jurídica, 2017. Pag. 359

Nucci, Guilherme de Souza. Corrupção e anticorrupção / Guilherme de Souza Nucci – Rio de Janeiro: Forense, 2015. Pag. 160.

OLIVEIRA MELLO, Glaucia. Consensualidade na improbidade administrativa: por que não?. Revista do Ministério Público do Estado do Rio de Janeiro nº 72, abr./jun. 2019. Disponível em: <http://www.mprj.mp.br/documents/20184/1344914/Glaucia_Rodrigues_T_de_Oliveira_Mello.pdf>. Acesso em: 15 out. 2020.

OLIVEIRA, Gustavo; CARVALHO, André. A Universidade e a formação do profissional de compliance no Brasil. Jornal da USP, 2018. Disponível em: <https://jornal.usp.br/artigos/a-universidade-e-a-formacao-do-profissional-de-compliance-no-brasil/>. Acesso em: 12 de dez. 2020.

PAULA, Marco Aurélio Borges de; CASTRO, Rodrigo Pirontini Aguirre de. Compliance no setor público/ Marco Aurélio Borges de Paula, Rodrigo Pirontini Aguirre de Castro (coord.) 2. ed. – Belo Horizonte: Fórum, 2020.

SANTOS, Renato Almeida dos et al. Compliance e liderança: a suscetibilidade dos líderes ao risco de corrupção nas organizações. Einstein, São Paulo, v. 10, n. 1, pág. 1-10, março de 2012. Disponível em <http://www.scielo.br/scielo.php?script=sci_arttext&pid=S1679-45082012000100003&lng=en&nrm=iso>. Acesso em 15 de out. de 2020.

SCHRAMM, Fernanda. O compliance como instrumento de combate à corrupção no âmbito das contratações públicas. Revista da Universidade de São Paulo, 2018. Disponível em: <https://edisciplinas.usp.br/pluginfile.php/4282318/mod_resource/content/0/DISSERTA%C3%87%C3%83O%20-%20FERNANDA%20SCHRAMM%20%28ler%20pag.%20171%20a%20235%29.pdf>. Acesso em: 10 dez. 2020.

SOUSA, Flávia. O controle (não)consensual dos acordos firmados na fase inquisitória e preparatória à ação de improbidade administrativa. Revista de Direito Administrativo e Gestão Pública, 2020. Disponível em: <https://indexlaw.org/index.php/rdagp/article/view/6479/pdf>. Acesso em: 12 out. 2020.

WEBER, Mark. Compliance e responsabilidade empresarial: medidas anticorrupção à luz dos sistemas jurídicos do Brasil e dos Estados Unidos / Mark Weber. / Curitiba: Juruá, 2018.

ZENKER, Marcelo. Compliance no setor público / Marcelo Zenker, Rodrigo Pironti Aguirre de Castro (coord.). – Belo Horizonte: Fórum, 2020. Pag. 187/188

ZIMMER JUNIOR, Aloísio. Corrupção e Improbidade Administrativa: cenários de risco e a responsabilidade dos agentes públicos municipais / Aloísio Zimmer Júnior. – São Paulo: Thomson Reuters Brasil, 2018.

^[1] Master’s in Diffuse and Collective Rights.

Submitted: June, 2021.

Approved: July, 2021.