The decision to condemn the Defendant for participation in a cartel of public bids conducted by Banco do Brasil was issued on December 10, 2014 and determined the prohibition of the company’s participation in bids carried out by federal, state, municipal, and the Federal District public administrations, whether direct or indirect, for 5 years. In accordance with this, the Defendant and its corporate structure would be registered in the Unified Registration System of Suppliers (SICAF) of the Ministry of Economy, as impeded from bid participation during the period of 2015 to 2020.

Nevertheless, three complaints were filed before CADE in 2017, 2019, and 2020, stating that Banco do Brasil had directly contracted the Defendant in 2015 and 2020, before the end of the registration period. Additionally, the case brings forth the possibility of cross-participation of the Defendant in biddings through a subsidiary.

Therefore, the problem is in the fact of whether the prohibition to participate in bids includes or does not include direct contracts with a mixed-economy company – thereby, an entity indirectly linked to the Public Administration – since the decision in question only mentions the impediment in bids and not specifically direct contracts.

In an oral argument, the Federal Public Ministry argued the importance of the statement from CADE’s Court in maintaining compliance with decisions. In doing so, it based its speeches on the legislation that submits mixed-economy companies to the Public Administration and argued that the rules make the impediment to contract explicit, in addition to bidding, with the aim of protecting the Public Administration. It also highlighted TCU Ruling 1753/2021, as an example that companies prohibited from participating in bids with the Union cannot be contracted at any level of Public Administration.

In her vote, Reporting Commissioner Lenisa Prado concluded that there was a breach of CADE’s decision by the Defendant and its corporate structure, following the understanding of former Commissioner Abraham Benzaquen’s vote in the proceeding no. 08012.001826/2003-10. Moreover, a daily fine of R$ 250,000 was applied to the Defendant for the days in which goods were delivered for non-compliance with the obligation not to do so, explaining that the fine was defined at the maximum limit of the law, due to the seriousness and continuity of the infraction. However, the trial of the case is suspended, due to a request for a review made by Commissioner Paula Azevedo.

O conteúdo CADE discusses non-compliance of ancillary penalties in the last Judgment Session aparece primeiro em Grinberg Cordovil Advogados.

In summary, four port operators that are already set up and associated with the Labor Management Body for Temporary Port Work in Belém and Vila do Conde (“OGMO-BVC”) established a mandatory entry fee (called the “jewel”) during a general meeting for operators interested in functioning in the ports. Please note that by the New Ports’ Law (Law No. 12.815/2013), the port operator must be associated with the managing body and supplier of port workers in order to operate there.

The investigation was opened in 2015 after the National Agency of Waterway Transport (Antaq) reported the practices of the OGMO-BVC, revealing that the association was improperly charging port operation fees to those that intended to be licensed in those ports. In CADE’s investigation, it was found that the “jewel” fees were being charged in varying amounts and with different conditions. Some were considered to have potential anticompetitive effects (such as foreclosing the market) and with no economic justification.

Initially, in the 172^nd Ordinary Judgment Session (SOJ) held on February 24, the Reporting Commissioner, Lenisa Prado defended the dismissal of the case, since CADE’s General Superintendence had rectified the Technical Note that opened the administrative proceeding, by including newly investigated companies and additional violations to the list of charges, which would make its reinstatement null and void. Nevertheless, the majority of the Court followed Commissioner Luiz Hoffmann’s vote, which stated that the principle points of the case showed that a fee was charged to the new operators to cover old liabilities in 2014, transferring the responsibility to the new operators with no justification, and thus, hindering the entry of new players. In this context, Commissioner Paula Azevedo brought forth a vote, reinforcing the seriousness of the practice, since the boycott was made in the scope of a civil association, which is a lawful and legitimate environment for regulating market issues.

O conteúdo CADE rules on charging fees to new operators in the ports of Belém and Vila do Conde aparece primeiro em Grinberg Cordovil Advogados.