Constructors Andrade Gutierrez, Artec, UTC Engenharia and Queiroz Galvão have approval from the STF to sign new works contracts with the government

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Appeals from the builders were judged against decisions of the Federal Court of Accounts (TCU) that prevented them from contracting with the public administration due to bidding fraud, most of them related to overpricing in the works of the Angra 3 Power Plant.

The contractors' lawyers allege that the sanction would void leniency agreements signed with federal public bodies and with the Administrative Council for Economic Defense (Cade). The trial began in May last year, with the votes of the rapporteur, Gilmar Mendes, and Edson Fachin. This Tuesday, ministers Nunes Marques, Ricardo Lewandowski and Cármen Lúcia voted.

In 2018 and 2019, Mendes granted injunctions to suspend the TCU sanction until the final judgment of the contractors’ appeals by the STF. Last year, the minister voted to confirm the injunctions. For him, the TCU cannot prevent leniency agreements, because this would compromise legal certainty and violate the guarantee of transparency and predictability of public power acts.

It is necessary to grant incentives for the realization of agreements, so that Andrade Gutierrez, Artec, UTC Engenharia and Queiroz Galvão contribute to the investigations

According to the rapporteur, it is necessary to grant incentives for the realization of agreements, so that companies contribute to the investigations. He stressed that the entire public administration must act in a coordinated manner. Still in the vote given last year, Mendes considered that it is important for the companies to function, with the repair of the damage caused and the payment of the fines applied.

The minister also stated that, in the decisions, the TCU went beyond its attributions and used evidence borrowed from other processes, without assuring the companies the contradictory and ample defense before preventing them from contracting with the public power.

Fachin partially disagreed and agreed with the rapporteur only in relation to Andrade Gutierrez. He explained that, in this case, the leniency agreement signed between the contractor and the Federal Public Ministry predates the TCU decision – therefore, it must be legitimized. This Tuesday, Carmen Lúcia agreed with Fachin. Nunes Marques and Lewandowski agreed with Mendes.