Decree 8,428, of April 2, 2015.

THE PRESIDENT OF THE REPUBLIC, in exercise of the powers conferred by Art. 84, caput, items IV and VI, alínea "a", of the Constitution, and having regard to the provisions of Art. 21 of Law 8,987, of February 13, 1995, Art. 31 of Law 9,074, of July 7, 1995, and Art. 3º, caput and § 1º, of Law 11,079, of December 30, 2004,

DECREES:

Chapter I Preliminary Provisions

Art. 1º

This Decree establishes the Public Expression of Interest Procedure, PMI, to be observed in the submission of projects, surveys, investigations or studies, by natural persons or private-law legal entities, for the purpose of supporting the public administration in structuring the privatization of companies and partnership contracts, under the terms of § 2º of Art. 1º of Law 13,334, of September 13, 2016. (Wording given by Decree 10,104, of 2019)

§ 1º The opening of the procedure provided for in the caput is optional for the public administration.

§ 2º The procedure provided for in the caput may be applied to the updating, supplementation or revision of projects, surveys, investigations and studies already prepared.

§ 3º The following are not subject to the procedure provided for in this Decree:

1. procedures provided for in specific legislation, including those provided for in Art. 28 of Law 9,427, of December 26, 1996; and
2. projects, surveys, investigations and studies prepared by international organizations to which Brazil is a party and by autarchies, public foundations, public companies or mixed-capital companies.

§ 4º The PMI shall consist of the following phases:

1. opening, through the publication of a public call notice;
2. authorization for the submission of projects, surveys, investigations or studies; and
3. evaluation, selection and approval.

§ 5º The selection process of the natural person or legal entity may take place prior to the authorization phase referred to in item II of § 4º, for purposes of compliance with the provisions of item I of the caput of Art. 6º. (Added by Decree 10,104, of 2019)

Art. 2º

Competence for the opening, authorization and approval of the PMI shall be exercised by the highest authority or by the highest collegiate body of the federal public administration body or entity competent to conduct the bidding of the project or to prepare the projects, surveys, investigations or studies referred to in Art. 1º.

Chapter II Opening

Art. 3º

The PMI shall be opened by means of a public call, to be conducted by the body or entity holding the competence provided for in Art. 2º, ex officio or upon request of an interested natural person or legal entity.

Sole paragraph. The proposal for the opening of a PMI by an interested natural person or legal entity shall be addressed to the authority referred to in Art. 2º and shall contain a description of the project, with the detailing of the public needs to be addressed and the scope of the projects, surveys, investigations and studies required.

Art. 4º

The public call notice shall, at a minimum:

1. delineate the scope, by means of a reference term, of the projects, surveys, investigations or studies; and
2. indicate:
   1. guidelines and assumptions of the project to guide its preparation in line with the public interest;
   2. maximum deadline and form for submitting a request for authorization to participate in the procedure;
   3. maximum deadline for submitting projects, surveys, investigations and studies, counted from the date of publication of the authorization and compatible with the scope of the studies and the level of complexity of the activities to be carried out;
   4. maximum nominal value for any reimbursement;
   5. criteria for qualification, review and approval of requests for authorization to submit projects, surveys, investigations or studies;
   6. criteria for evaluating and selecting projects, surveys, investigations or studies submitted by natural persons or private-law legal entities authorized, under the terms of Art. 10; and
   7. the public counter-payment allowed, in the case of a public-private partnership, whenever it is possible to estimate, including in the form of a percentage;
3. disclose the public information available for the preparation of projects, surveys, investigations or studies; and
4. be widely publicized, by means of publication in the Official Federal Gazette and disclosure on the website of the bodies and entities referred to in Art. 2º.

§ 1º For the purposes of defining the object and scope of the project, survey, investigation or study, the requesting body or entity shall assess, in each case, the appropriateness and timeliness of grouping severable parts within the same PMI in order to ensure, among other aspects, economies of scale, coherence of studies relating to a given sector, standardization or speed of the process.

§ 2º The scope delineation referred to in item I of the caput may be limited to indicating the problem to be solved through the project referred to in Art. 1º, leaving to natural persons and private-law legal entities the possibility of suggesting different means for its solution.

§ 3º The deadline for submitting requests for authorization to submit projects, surveys, investigations or studies shall not be less than twenty days, counted from the date of publication of the notice.

§ 4º Intermediate deadlines may be set in the public call notice for the submission of information and progress reports on the development of projects, surveys, investigations or studies.

§ 5º The maximum nominal value for any reimbursement of the projects, surveys, investigations or studies:

1. shall be supported by prior technical justification, which may be based on the complexity of the studies or on the preparation of similar studies; and
2. shall not exceed, in the aggregate, two and five tenths per cent of the total amount previously estimated by the public administration for the investments necessary to implement the project or for the expenditures necessary to operate and maintain the project during the term of the contract, whichever is greater.

§ 6º The public call notice may condition the reimbursement of the projects, surveys, investigations and studies on the need for their updating and adjustment, up to the opening of the bidding process for the project, due, among other aspects, to:

1. changes in regulatory assumptions and applicable normative acts;
2. recommendations and determinations of oversight bodies; or
3. contributions from public consultation and public hearing.

§ 7º In the case of a PMI prompted by a natural person or private-law legal entity, the name of the natural person or legal entity that prompted the opening of the process shall appear in the public call notice.

Art. 5º

The request for authorization to submit projects, surveys, investigations or studies by natural persons or private-law legal entities shall contain the following information:

1. full qualification, allowing for the identification of the natural person or private-law legal entity and its location for the eventual sending of notifications, information, errata and responses to requests for clarification, with:
   1. full name;
   2. registration in the Cadastro de Pessoa Física, CPF, or in the Cadastro Nacional de Pessoa Jurídica, CNPJ;
   3. position, profession or area of activity;
   4. address; and
   5. email address;
2. demonstration of experience in carrying out projects, surveys, investigations and studies similar to those requested;
3. detailing of the activities intended to be carried out, considering the scope of the projects, surveys, investigations and studies defined in the request, including the submission of a schedule indicating the completion dates of each stage and the final date for delivery of the work;
4. indication of the amount of reimbursement sought, accompanied by information and parameters used for its definition; and
5. declaration of transfer to the public administration of the rights associated with the selected projects, surveys, investigations and studies.

§ 1º Any change in the qualification of the interested party shall be immediately communicated to the requesting body or entity.

§ 2º The demonstration of experience referred to in item II of the caput may consist of the submission of documents proving the technical qualifications of professionals linked to the interested party, observing the provisions of § 4º.

§ 3º The interested parties referred to in the caput may associate to jointly submit projects, surveys, investigations and studies, in which case the companies responsible for liaison with the public administration shall be identified and the proportional split of any amount owed as reimbursement shall be indicated.

§ 4º The authorized party, in preparing projects, surveys, investigations or studies, may contract third parties, without prejudice to the responsibilities provided for in the public call notice of the PMI.

Chapter III Authorization

Art. 6º

The authorization to submit projects, surveys, investigations and studies:

1. may be granted on an exclusive basis or to a limited number of interested parties; (Wording given by Decree 10,104, of 2019)
2. shall not create a right of preference in the bidding process for the project;
3. shall not oblige the Government to hold a bidding process;
4. shall not imply, in itself, a right to reimbursement of the amounts involved in its preparation; and
5. shall be personal and non-transferable.

§ 1º Authorization to carry out projects, surveys, investigations and studies does not imply, under any circumstances, liability of the public administration vis-à-vis third parties for acts performed by an authorized person.

§ 2º In drafting the authorization, the competent authority shall reproduce the conditions set forth in the request and may specify them, including with respect to the activities to be carried out, the nominal limit for any reimbursement and the intermediate deadlines for submitting information and progress reports on the development of projects, surveys, investigations or studies.

Art. 7º

The authorization may be:

1. revoked for cause, in case of non-compliance with its terms, including in the event of non-compliance with the deadline for resubmission determined by the requesting body or entity, in view of § 2º of Art. 9º, and of failure to comply with applicable legislation;
2. revoked, in case of:
   1. loss of interest by the Government in the projects referred to in Art. 1º; and
   2. withdrawal by the authorized natural person or private-law legal entity, to be submitted at any time, in writing, to the requesting body or entity;
3. annulled, in case of defect in the procedure regulated by this Decree or for other reasons provided for in the legislation; or
4. rendered without effect, in case of supervening legal provision that, for any reason, prevents the receipt of the projects, surveys, investigations or studies.

§ 1º The authorized person shall be notified of the occurrence of the situations provided for in the caput.

§ 2º In the event of non-compliance with the terms of the authorization, if there is no remedy within five days, counted from the date of communication, the authorized person shall have the authorization revoked for cause.

§ 3º The cases provided for in the caput do not give rise to any right of reimbursement of the amounts involved in the preparation of projects, surveys, investigations and studies.

§ 4º After thirty days from the date of communication provided for in § 1º and § 2º, the documents sent to the requesting body or entity that have not been collected by the authorized person may be destroyed.

Art. 8º

The Government may hold meetings with the authorized person and any parties interested in the holding of the public call whenever it deems that they may contribute to a better understanding of the subject matter and to obtaining projects, surveys, investigations and studies better suited to the projects referred to in Art. 1º.

Chapter IV Evaluation, Selection and Approval of Projects, Surveys, Investigations and Studies

Art. 9º

The evaluation and selection of projects, surveys, investigations and studies submitted shall be carried out by a commission designated by the requesting body or entity.

§ 1º The requesting body or entity may, at its discretion, open a period for the resubmission of projects, surveys, investigations and studies submitted, in case they require detailing or corrections, which shall be expressly indicated in the act reopening the period.

§ 2º Failure to resubmit within the period indicated by the requesting body or entity shall imply revocation of the authorization for cause.

Art. 10

The criteria for evaluating and selecting projects, surveys, investigations and studies shall be specified in the public call notice and shall consider:

1. compliance with the guidelines and assumptions defined by the body or entity referred to in Art. 2º;
2. the consistency and coherence of the information supporting their preparation;
3. the adoption of the best preparation techniques, according to relevant scientific norms and procedures, and the use of equipment and processes recommended by the best technology applied to the sector;
4. compatibility with the legislation applicable to the sector and with the technical standards issued by the competent bodies and entities;
5. the comparative demonstration of cost and benefit of the proposed project in relation to functionally equivalent options, in the case provided for in § 2º of Art. 4º; and
6. the socio-economic impact of the proposal for the project, where applicable.

Sole paragraph. In the case of exclusive authorization or authorization to a limited number of interested parties, the selection shall consider one or more of the following criteria: (Added by Decree 10,104, of 2019)

1. proven professional experience; (Added by Decree 10,104, of 2019)
2. work plan; and (Added by Decree 10,104, of 2019)
3. preliminary evaluations of the project. (Added by Decree 10,104, of 2019)

Art. 11

None of the projects, surveys, investigations and studies selected binds the public administration, and it is up to its technical and legal bodies to evaluate, opine on and approve the legality, consistency and sufficiency of the projects, surveys, investigations and studies submitted.

Art. 12

Projects, surveys, investigations and studies may be rejected:

1. partially, in which case the reimbursement amounts shall be calculated only with respect to the information actually used in any bidding process; or
2. totally, in which case, even if there is a bidding process for the contracting of the project, there shall be no reimbursement of the expenses incurred.

Sole paragraph. If the commission concludes that none of the projects, surveys, investigations or studies submitted satisfactorily meets the authorization, it shall not select any of them for use in a future bidding process, in which case all submitted documents may be destroyed if not collected within thirty days, counted from the date of publication of the decision.

Art. 13

The requesting body or entity shall publish the result of the selection procedure in the means of communication referred to in item IV of the caput of Art. 4º.

Art. 14

Projects, surveys, investigations and studies shall be disclosed only after the administrative decision, under the terms of § 3º of Art. 7º of Law 12,527, of November 18, 2011.

Art. 15

Upon completion of the selection of projects, surveys, investigations or studies, the amounts presented for any reimbursement by those that have been selected shall be assessed by the commission.

§ 1º If the commission concludes that the submitted projects, surveys, investigations or studies do not conform to those originally proposed and authorized, it shall determine the nominal amount for any reimbursement with due justification.

§ 2º The amount determined by the commission may be rejected by the interested party, in which case the information contained in the selected documents shall not be used, and they may be destroyed if not collected within thirty days, counted from the date of rejection.

§ 3º In the case provided for in § 2º, the commission may select other projects, surveys, investigations and studies among those submitted.

§ 4º The amount determined by the commission shall be accepted in writing, with an express waiver of other pecuniary amounts.

§ 5º Upon completion of the selection referred to in the caput, the commission may request corrections and changes to projects, surveys, investigations and studies whenever such corrections and changes are necessary to address demands from oversight bodies or to improve the projects referred to in Art. 1º.

§ 6º In the case of changes provided for in § 5º, the authorized party may submit new amounts for any reimbursement referred to in the caput. (Repealed by Decree 10,104, of 2019)

Art. 16

Amounts related to projects, surveys, investigations and studies selected under this Decree shall be reimbursed to the authorized natural person or private-law legal entity exclusively by the winner of the bidding process, provided that the selected projects, surveys, investigations and studies have been effectively used in the auction.

Sole paragraph. Under no circumstances shall any pecuniary amount be owed by the Government in connection with the preparation of projects, surveys, investigations and studies.

Chapter V Final Provisions

Art. 17

The bidding notice for the contracting of the project referred to in Art. 1º shall, on pain of nullity, contain a clause conditioning the signing of the contract by the bidding winner upon the reimbursement of the amounts related to the preparation of the projects, surveys, investigations and studies used in the bidding process.

Art. 18

The authors of or those economically responsible for the projects, surveys, investigations and studies submitted under the terms of this Decree may participate directly or indirectly in the bidding or in the execution of works or services, unless there is a provision to the contrary in the public call notice of the PMI.

§ 1º An economically responsible party is a natural person or private-law legal entity that has financially contributed, by any means and in any amount, to the funding of the preparation of projects, surveys, investigations or studies to be used in a bidding process for the contracting of the project referred to in Art. 1º.

§ 2º Companies belonging to the same economic group as the authorized party shall be deemed equivalent to authors of the project.

Art. 19

The provisions of this Decree shall apply to public-private partnerships, including those already defined as priorities by the Federal Public-Private Partnership Management Committee (CGP) and, where applicable, to the authorizations already published by its Executive Secretariat for the submission of projects, surveys, investigations and studies prepared by natural persons or private-law legal entities regulated by Decree 5,977, of December 1, 2006.

Sole paragraph. The competence for the evaluation, selection and publication of the result of ongoing expressions of interest procedures shall observe the provisions of this Decree, and the Executive Secretariat of the CGP shall communicate the change of competence to the authorized persons.

Art. 19-A (Added by Decree 11,245, of 2022)

The provisions of this Decree shall apply to authorizations arising from the public call referred to in Law 14,273, of December 23, 2021.

Art. 20

The following are hereby repealed:

1. item VII of the caput of Art. 3º of Decree 5,385, of March 4, 2005; and
2. Decree 5,977, of December 1, 2006.

Art. 21

This Decree enters into force on the date of its publication.

Sole paragraph. The provisions of this Decree shall not apply to public calls in progress.

Brasília, April 2, 2015; 194th of Independence and 127th of the Republic.

DILMA ROUSSEFF
Antônio Carlos Rodrigues
Nelson Barbosa
Luís Inácio Lucena Adams
Edinho Araújo
Eliseu Padilha

This text does not replace the one published in the Official Federal Gazette of April 6, 2015.