Presidency of the Republic Civil House Deputy Chief for Legal Matters
LAW No. 13.334 OF SEPTEMBER 13, 2016.
Creates the Investment Partnerships Program - IPP; modifies Law No. 10.683 of May 28, 2003; and provides other measures.
THE PRESIDENT OF THE REPUBLIC Hereby makes it known that the National Congress decrees and I sanction the following Law:
Section I
THE INVESTMENT PARTNERSHIPS PROGRAM
1st Art. Under the scope of the Presidency of the Republic, the Investment Partnerships Program (IPP) is created to expand and strengthen the interaction between the State and the private sector through the signing of partnership agreements for the execution of public infrastructure ventures and other privatization measures.
1st § The following can be incorporated into the IPP:
I - public infrastructure ventures which are being or will be implemented by means of partnership contracts entered into by the direct and indirect public administration;
II - public infrastructure projects which, by delegation or through support from the Union, are carried out through partnership agreements entered into by the direct or indirect public administration of the States, Federal District or Municipalities; and
III - other measures from the National Privatization Program referred to in Law no. 9.491 of September 9, 1997.
2nd § For the purposes of this Law, partnership contracts are considered to be a common concession, sponsored concession, administrative concession, concession governed by sectoral legislation, public service permit, lease of public property, right in rem concession and other public-private businesses that, due to their strategic nature and complexity, specificity, volume of investments, long-term risks or the uncertainties involved, adopt a similar legal structure.
2nd Art. The objectives of the IPP are:
I - to increase investment and employment opportunities and stimulate technological and industrial development in harmony with the country's social and economic development goals;
II - to guarantee an increase in quality infrastructure with adequate tariffs;
III - to promote fair and ample competition in the signing of partnerships and the provision of services;
IV - to ensure judicial stability and security with a guarantee of minimal intervention in business and investment; and
V - to strengthen the regulatory role of the State and the autonomy of state entities of regulation.
3rd Art. In implementing the IPP, the following principles will be observed:
I - the stability of public infrastructure policies; II - the legality, quality, efficiency and transparency of state action; and
III - the guarantee of legal certainty to the public officials, state entities and individuals involved.
4th Art. The IPP shall be regulated through decrees which, in the terms and limits of sectoral laws and comprehensive legislation are defined as:
I - long term federal policies for investments through partnerships in federal government infrastructure ventures and privatization;
II - federal government infrastructure ventures eligible for implementation through a partnership and the strategic guidelines for their structuring, bidding and procurement; and
III - federal policies to foster partnerships in public infrastructure ventures of States, the Federal District or Municipalities.
5th Art. IPP ventures shall be treated as a national priority by all public execution or controlling officials, the Union, the States, the Federal District and the Municipalities.
6th Art. The agencies, entities and authorities of the Union's public administration with jurisdictions related to IPP ventures will formulate their own programs geared towards adopting, in the administrative regulation and regardless of legal requirement, the advanced practices recommended by the best national and international experiences, including:
I - plans, regulations, and acts that formalize and make State policies stable that are established by the Executive Authority for each regulated sector in a way that ensures its execution within the scope of administrative regulation, observing the competences of the specific legislation, and through prior public consultation;
II - elimination of bureaucratic barriers for the free organization of business;
III - linking with the Administrative Council of Economic Defense - CADE, as well as with the Department of Economic Monitoring - SEAE of the Ministry of Finance, for the purposes of compliance with anti-trust law; and
IV - linking with control agencies and authorities to increase the transparency of administrative actions and for efficiency in receiving and considering the contributions and recommendations.
SECTION II
THE BOARD OF THE INVESTMENT PARTNERSHIPS PROGRAM OF THE PRESIDENCY OF THE REPUBLIC
7th Art. The Board of the Program of Investment Partnerships of the Presidency of the Republic - CPPI is created with the following powers:
I - to give its opinion, prior to deliberation by the President of the Republic, on the proposals of the competent agencies or entities on the matters laid out in the 4th art. of this Law;
II - to monitor the implementation of the IPP;
III - to formulate proposals and reasoned representations to the Heads of the Executive Power of the States, Federal District and Municipalities;
IV - to formulate recommendations and policy guidelines for the agencies, entities and authorities of the public administration of the Union; V - exercise the duties assigned:
a) to the federal public-private partnerships through Law no. 11.079 of December 30, 2004;
b) to the National Council for the Integration of Transportation Policies through Law no. 10.233 of June 5, 2001; and
c) to the National Privatization Council through Law no. 9.491 of September 9, 1997;
VI - publish its Internal Regulation.
1st § With voting rights, the members of the CPPI shall be the Executive-Secretary of the Secretariat of the Investment Partnerships Program of the Presidency of the Republic (SPPI), who will also act as the Executive-Secretary of the Council; The Chief of Staff; The State Ministers of Finance, Planning, Development and Management, of Mining and Energy, of Transport, Ports and Civil Aviation and of the Environment; The President of the National Economic and Social Development Bank (BNDES) and the President of Caixa Econômica Federal.
2nd § Ministers responsible for the proposals or matters under examination and, where appropriate, the leaders of the relevant regulatory bodies, shall be invited to attend meetings by the Board, without voting rights.
3rd § The composition of the Program's Board of Investment Partnerships of the Presidency of the Republic will observe, when applicable, the 2nd § of the 5th art. of Law no. 9.491 of September 9, 1997.
4th § The meetings of the Board shall be presided over by the President of the Republic, who shall be, for matters needing deliberation, the final decision in case of a stalemate.
SECTION III
THE SECRETARIAT OF THE INVESTMENT PARTNERSHIPS PROGRAM
8th Art. The Secretariat of the Investment Partnerships Program (SPPI) shall be headed by an Executive Secretary, who will:
I - direct the SPPI, as well as supervise and coordinate its activities and guide its operation;
II - report directly to the President of the Republic;
III - advise the President of the Republic on matters related to the SPPI's activities, preparing opinions and studies or proposing rules, measures and guidelines;
IV - undertake normative guidance and technical supervision regarding matters related to SPPI's tasks;
V - edit the Internal Regulations of the SPPI; and
VI - edit and practice the normative acts and the other acts that are inherent in its tasks.
9th Art. The SPPI must provide ample access to Congress for the documents and information from IPP ventures that are underway, providing the requested data within thirty days.
1st § In order to comply with the provisions in the caput, the SPPI may require confidentiality for the information provided.
2nd § It shall be incumbent upon the SPPI to submit a detailed report containing data on the progress of the projects and other actions under the PPI that occurred in the previous year to the National Congress, by March 30 of the following year. Art. 10. The composition, operation and detail of SPPI's competencies shall be established in an act by the Executive Power.
SECTION IV
PROJECT STRUCTURING
Art. 11. The sector ministry or body with jurisdiction to formulate sector policy is responsible, with the support of the SPPI, for adopting the necessary measures for the inclusion of the ventures under the IPP.
Art. 12. In order to structure the projects that are or could be part of the IPP, the competent agency or entity may, subject to other mechanisms provided for in the legislation:
I - use the internal structure of the public administration itself;
II - contract specialized professional technical services;
III - open a public call;
IV - receive suggestions for projects, with any reimbursement being strictly forbidden; or
V - sign a contract to provide specialized professional technical services directly with the Fund for Structuring Partnerships - FAEP.
Art. 13. Observing the provisions in the 3rd Art. of Law no. 9.491 of September 9, 1997, and in the 3rd § of Art. 10 of Law no 11.079, of December 30, 2004, the bidding and signing of the IPP partnerships are independent of general or specific authorizing law.
SECTION V
PARTNERSHIPS STRUCTURING SUPPORT FUND
Art. 14. The BNDES is authorized to represent and participate in the Partnerships Structuring Support Fund (FAEP), whose purpose, through a contract, is to provide onerous specialized professional technical services for the structuring of investment partnerships and privatization measures.
1st § The FAEP shall be private and have its own equity separate from the shareholders' equity, being subject to its own rights and obligations, and shall have the capacity to execute, on its behalf, contracts, agreements or any adjustment that establishes duties and obligations and that are necessary for the performance of its purposes.
2nd § The FAEP shall have an initial period of ten years, renewable for equal periods.
3rd § FAEP's administrator and its shareholders shall not be liable for any obligation of the Fund, except for the payment of the shares they subscribe to.
4th § FAEP shall be administrated, managed and represented judicially and extra-judicially by BNDES.
5th § The FAEP may coordinate with agencies or entities of the Union, States, the Federal District and Municipalities whose functional performance is linked to the structuring, liberation, bidding, contracting and financing of ventures and activities for the exchange of information and for monitoring and reciprocal collaboration in projects.
6th § FAEP resources are made up of the following:
I - those arising from the payment of quotas, in the current national currency, by legal entities governed by public law, international organizations and individuals or legal entities governed by private law, whether state or non-state; II - compensations received for its services;
III - those received by the divestment of goods and rights, or of publications, technical material, data and information;
IV - income from financial applications that it performs; and
V - funding stemming from other sources defined in its statute.
7th § FAEP shall allocate part of the price received for its services as compensation to BNDES by the administration, management and representation of the Fund, according to its statute.
8th § FAEP shall not pay income to its shareholders, granting any of them the right to request the total or partial redemption of their shares, with a liquidation made based on the assets of the Fund, and the redemption of quotas in an amount greater than the amount of available financial resources not yet linked to the integrated structures already contracted being prohibited, in accordance with the statute.
9th § the FAEP statute must provide for measures that ensure the security of information in order to contribute to a broad competition and to avoid conflicts of interest in the bidding of public venture partnerships.
Art. 15. FAEP may be directly hired by public administration agencies and entities to provide specialized professional technical services for the structuring of partnership agreements and privatization measures.
Art. 16. In order to implement the technical services for which it has been contracted, the FAEP may hire, in accordance with regulations, technical support from individuals or specialized legal entities, leaving it up to the public agents managing the Fund, with the support of SPPI, the general coordination of the projects and the coordination with the other agencies and entities involved.
SECTION VI
RELEASE OF IPP VENTURES
Art. 17. State agencies, entities and authorities, including those that are autonomous and independent, of the Union, States, the Federal District and the Municipalities, whose competencies interfere on the viability of IPP ventures, have the responsibility to act collectively and efficiently, so that all processes and administrative acts necessary for its structuring, release and implementation are completed in a uniform, economic and time- sensitive manner and treating the venture as a national priority.
1st § 'Release' is understood as obtaining of any licenses, authorizations, registrations, permits, rights of use or operation, special regimes and equivalent titles, of regulatory, environmental, indigenous, urbanistic, transit, public assets, water, protection of cultural assets, customs, mining, taxes, and any other assets required for the implementation and operation of the venture.
2nd § The Federal Government's agencies, entities and authorities with sectorial competences related to IPP ventures shall convene all agencies, entities and authorities from the Union, States, Federal District or Municipalities with release authorities to participate in the structuring and implementation of the project and fulfilling the objectives of the IPP, including a collective definition of the content in the terms of reference for environmental licensing.
SECTION VII
FINAL PROVISIONS
Art. 18. Law no. 10.683 of May 28, 2003, shall become effective with the following amendments:
“1st Art......
...... XIV - by the Secretariat of the Investment Partnerships Program.
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3rd § Also integrates The Presidency of the Republic to the Chamber of Foreign Trade - CAMEX and the Board of the Investment Partnerships Program.” (NR)
“Art. 24-F. The responsibility of the Secretariat of Investment Partnerships of the Presidency of the Republic – SPPI is:
I - to coordinate, monitor, evaluate and supervise activities carried out by the Investment Partnerships Program and to support the sectorial actions required for its implementation, subject to the legal responsibilities of the Ministries, agencies and sectorial entities;
II - to monitor and subsidize, in exercising its supervisory and support functions, activities carried out by the Ministries, agencies and sectorial entities, as well as the Support Fund for Structuring Partnerships - FAEP;
III - announce IPP projects in a way that allows the public to monitor it;
IV - draw up adjustments with the Administrative Council for Economic Defense - CADE, as well as with the Department of Economic Monitoring - SEAE of the Ministry of Finance, to receive technical contributions geared towards adopting the best national and international practices to promote the fair and ample competition in the execution of partnerships and provision of services; and
V - draw up adjustments or accords with agencies or entities in the public administration of the Union, States, the Federal District or Municipalities, for coordinated action or for exercising decentralized functions.
1st § The SPPI shall have the same ministerial prerogatives pertaining to the use of systems, especially those used for processing documents.
2nd § The basic structure of the SPPI is the Cabinet, the Executive Secretariat and up to three Secretariats.”
Art. 19. The Special Nature Position - CNE of the Executive-Secretary of the SPPI is hereby created.
Art. 20. The Planning and Logistics Company - EPL has now become linked to the SPPI, and is responsible for providing support to the CPPI.
Art. 21. The provisions of this Law shall apply, as appropriate, to private entrepreneurial ventures that, under an administrative authorization, compete or coexist, in a state-owned or public-service sector with public ventures as state entities or contracted third parties through the partnerships specified in this Law.
Art. 22. This Law shall become effective on the date of its publication.
Brasília, September 13, 2016; 195th year of Independence and 128the year of the Republic.
MICHEL TEMER Henrique Meirelles Maurício Quintella Fernando Coelho Filho Dyogo Henrique de Oliveira José Sarney Filho
This text does not replace the Portuguese version published in the DOU on 9/13/2016 - Extra issue and rectified on 9/15/2016