By: Leonardo Neri

The implementation of an integrity program by companies gained momentum in Brazil with the enactment of the Anti-Corruption Law – Law 12.846/2013. The aim of implementing a culture of compliance in companies is to demonstrate the individual responsibility of the individual and, consequently, obtain lesser sanctions, as long as the company complies with this behavioral paradigm.

Along the same lines, the new bidding law also brought innovations in this aspect, with the changes in the new law being quite relevant, so that companies that operate with the public sector must pay strict attention to faithfully and correctly complying with what the law says.

The law is objective in imposing on individuals that, in the procurement of large-scale works, services and supplies, the notice must provide for the mandatory implementation of an integrity program by the winning bidder, within six months, counting from the execution of the contract, according to the regulation that will establish the measures to be adopted, the form of proof and the penalties for non-compliance, as provided for in article 25, paragraph 4 of the new law. Despite the obligation of the contracted company, many states, even before the new law, already required companies to have an integrity program when contracting.

The new law establishes as a tiebreaker criterion the one that has an active integrity program, since the fourth criterion to be applied to break the tie will be precisely the development by the bidder of an integrity program, in accordance with article 60, item IV.

Furthermore, if there is a need for the Public Administration to apply sanctions, the implementation or improvement of an integrity program will be considered for the purposes of reducing the sanction, in accordance with the rules and guidelines of the control bodies (article 156, paragraph 1, item V), despite the adoption of a compliance program already being provided for in the Anti-Corruption Law as mitigating conditions in the imposition of penalties.

Finally, the new law provides, in article 163, for the admission of the rehabilitation of the bidder or contractor before the authority that applied the penalty, subject to the implementation or improvement of the integrity program by the company.

It is important to highlight that the new bidding law has increased the period for prohibiting contracts with public entities, preventing the person responsible from bidding or contracting within the scope of the direct and indirect Public Administration of all federative entities, for a minimum period of three years and a maximum of six years (article 156, paragraph 5).

Therefore, it is clear that implementing an integrity program is essential for companies, especially those that have a relationship with the Government, since the execution of a program preserves the company's image and reputation, as well as creates competitive advantages. In this sense, it is essential that companies in general, but especially those that have or intend to maintain a relationship with the Government, have an active and updated integrity program.