The Auction Commission No. 3/2018-PPI / PND, based on Bid No. 3 / 2018PPI / PND, announces a statement from the Ministry of Economy to the Letter sent on 03/05/2019 by the companies IGT Global Services Limited and Scientific Games International Inc., regarding the Lotex public service tender:
"Regarding the Letter sent on 03/05/2019 to the Ministry of Economy by the companies IGT Global Services Limited and Scientific Games International Inc., identified as potential interested parties in the bidding for the concession of the exclusive Instant Lottery (LOTEX) public service, pursuant to of Bid Notice No. 3/2018-PPI / PND (Edital), the following considerations can be noticed if there is an eventual refusal to sign the Concession Agreement (if they win the bid)
• According to item 5.4 of the Invitation to Bid, "participation in the Auction implies the full and unconditional acceptance of all of the terms, provisions, and conditions of the Notice, the Attachments to the Notice, the Manual of Procedures, the Draft Agreement and the Draft of the Contract, as well as other rules applicable to the Auction. "Furthermore, item 9.6 of the Final Tender Protocol states that" Written Economic Proposals shall be unconditional, irreversible and irrevocable."
• According to item 12.3.1, the Granting Committee shall declassify the Bidder whose Proposal Guarantee and / or Written Economic Proposal does not meet all the requirements established in the applicable legislation and in the Invitation to Bid, and also that which involves an offer subject to the condition or term not provided for in this Notice. "Thus, the presentation of Bid Security and / or Written Economic Proposal on a conditional basis leads to the disqualification of the respective Bidder.
• With regard to the sanctions applicable due to the refusal to sign the Concession Agreement, it should be noted that it will be incumbent upon the Ministry of Economy to evaluate the acceptance of the justifications presented by the Successful Bidder, pursuant to items 15.5.1 to 15.5.3 of the Final Tender Protocol.
• If the justifications are accepted by the Ministry of Economy in its entirety, no sanctions will be applied due to the refusal of the Successful Bidder to sign the Contract.
• If the justifications are not accepted, the penalties will be applied, among those provided in items 15.5.1 and 15.5.2, which are, application of a fine corresponding to the full value of the Bid Security, and its respective execution , and / or temporary suspension of participation in bidding and impediment to contract with the Administration for a period not exceeding 24 (twenty four) months.
• It is important to note that, in applying the sanctions described above, the Ministry of Economy, at its discretion, will assess the gravity of the conduct practiced by the Successful Bidder, based on the justifications presented considering the principles of reasonableness and proportionality in determining the applicable penalties.
• Accordingly, in the assessment of the Ministry of Economy, in case the Successful Bidder does not enter into a commercial agreement with the Caixa Económica Federal to use the commercial network, in accordance with the non-binding commercial conditions disclosed by Warnings 7 and 8 of the Granting Commission ("Commercial Contract"), such fact shall not be considered an acceptable and sufficient justification for totally eliminating the penalties arising from the refusal to execute the Concession Agreement, pursuant to items 15.5.1 and 15.5.2 of the Invitation to Bid.
• In this way, if the refusal to sign the Concession Agreement arises from the motive described in item 7, a fine corresponding to the full amount of the Bid Security will be applied, and will be executed as compensation for the damages caused.
• However, considering the principles of reasonableness and proportionality, based on the evaluation of the concrete reasons presented by the Successful Bidder, if the Non-execution of the Commercial Contract by the Successful Bidder results from a unilateral decision of the Caixa Económica Federal, for which the Successful Bidder has not given a cause, the Ministry of Economy informs that it will not apply the sanction of temporary suspension of participation in bidding and impediment of contracting with the Administration, foreseen in item 15.5.2 of the Notice ("Sanction").
• Due to the exceptionality of the factual situation strictly described above, the Ministry of the Economy understands that not applying the Sanction means safeguarding the public interest related to the preservation of the competitive aspect of eventual future bidding contest of the lottery modality of fixed-odds sports betting, whose Law 13,756, of 2018, which should be regulated until December 2020, allows the commercial exploitation of this modality. Thus, not restricting the participation of a possible competitor in this new modality contributes to the growth and modernization of the national lottery sector.
• In any event of refusal to sign the Concession Agreement, the Ministry of Economy may call the remaining Bidders, according to the order of classification of the event, in accordance with item 15.6 of the Final Tender Protocol.
Source: GMB
