Both filings originated from the General Superintendence’s (SG/CADE) findings during the investigation of a report of anticompetitive conducts such as refusal to deal, exclusivity and others– see Administrative Inquiry 08700.004318/2018-11 – and were filed by the parties after an administrative proceeding for Assessing Mergers (APAC) was opened to investigate possible gun jumping.

The main transaction, between companies Clickbus and J3, had its approval conditioned to celebrating an Merger Control Agreement (ACC), which establishes several behavioral remedies to be implemented by the parties. The parties to the transaction agreed to: (i) cease exclusive dealing arrangements in the market, both contractual or otherwise, with bus transport companies or marketplaces that hire their GDS service; (iii) adopt internal measures to preserve confidentiality of competitively sensitive information between different market segments in which they are active; and (iii) implement an antitrust compliance program. These remedies will be in force for a term of 3 years, when applicable, and will be monitored by an independent trustee.

The following related procedures are still pending trial: the two aforementioned APACs regarding the possible fine for gun jumping, as well as the report of anticompetitive conducts against the parties. In this sense,  the Reporting-Commissioner Sergio Ravagnani stated that the ongoing investigation by the SG/CADE remains, since the ACC does not concern the past, but rather the future, and there is independence to proceed with the investigation.

The public versions of the decisions have not yet been made available.

O conteúdo CADE clears transactions in the online bus ticket sales market aparece primeiro em Grinberg Cordovil Advogados.

The new regime adds new judgment criteria, by consolidating two criteria already used: the “highest discount”, already used informally, and the “highest economic return”, which also already exists for efficiency contracts. The new criteria are listed in art. 32 of the new Law: a) lowest price; b) highest discount; c) best technique or artistic content; d) technique and price; e) highest bid; and f) highest economic return.

Focusing on the transparency of public contracts, the PL determines that the entire content of the contract signed with the Public Power should be disclosed on the company’s website, exempting only micro and small companies from the obligation.

The “invitation” and “price taking” were eliminated, and the “competitive dialogue” mode was created. The last one is a major innovation of the Bill. The price of each bidder will only be requested after the summons of particular parties has been made to present ideas and assist in the identification of the best solution. It will be used for the hiring of objects that involve technological or technical innovation; solutions that depend on the adaptation of the options available in the market or involve specifications that cannot be defined sufficiently by the Administration.

The competitive dialogue is very similar to the Manifestation of Interest Procedure (PMI). This administrative process makes it possible to request studies related to projects of public interest with the help of private initiative and without the immediate disbursement of resources. In PMI, there is no guarantee that there will be bidding, making it not so attractive to interested individuals. The competitive dialogue is in fact a bidding modality that links the structuring of the project with the competition for its contracting.

The bill addresses crimes in bids and administrative contracts with fines and imprisonment and detention penalties of 6 to 8 years (2 years more than in Law 8,666/93). The PL gives new wording for the crime of frustration of the competitive nature of the bidding procedure, changing its detention penalty to a four to eight year imprisonment.

The text now goes forward for presidential sanctioning.

O conteúdo Senate approves new bidding law aparece primeiro em Grinberg Cordovil Advogados.

Read the full version wrote by Beatriz Cravo and Daniel Tobias Athias: What does CADE consider “simple” for the fast track?

O conteúdo What does CADE consider “simple” for the fast track? aparece primeiro em Grinberg Cordovil Advogados.

Read the full version wrote by Leonor Cordovil and Daniel Tobias Athias: Distinguishing between misconduct infractions and competition violations in the Car Wash Operation

O conteúdo Distinguishing between misconduct infractions and competition violations in the Car Wash Operation aparece primeiro em Grinberg Cordovil Advogados.

Read the full version wrote by Mauro Grinberg and Daniel Tobias Athias: CADE and Judicialization: merits analysis.

O conteúdo CADE and Judicialization: merits analysis aparece primeiro em Grinberg Cordovil Advogados.