Among the actions taken this year to combat corruption, one of the main goals of the federal government, the promulgation of Decree No. 9,764/19 certainly represents one of the most relevant milestones in improving public-private interaction and dialogue. In summary, the decree regulated how bodies and entities that are part of the structure of the direct federal Public Administration can receive donations of movable goods and services from private individuals or legal entities without costs or charges.
Historically, contributions by the private sector to the public sector have always been a point of attention for companies, which were reluctant to do so because they were concerned about the risks of potential illegalities in the relationship with the Public Administration. The main reason for this concern was the lack of legal regulations on the subject. There were only legal constructions to justify the validity and legitimacy of private collaboration with the Public Administration, based essentially on general principles of law (such as good faith) and those that guide the exercise of public functions, such as those found in article 37 of the Federal Constitution. The issuance of a decree that deals expressly with the subject, therefore, guarantees legal certainty and provides clear guidelines on the limits for actions by companies and individuals in this interaction with the Public Administration.
In force as of August 12 of this year, Decree No. 9,764/19 provided adequate clarification on the procedure and conditions for the donation of movable property and services to the federal Public Administration, especially when there is unanimous concern by companies with corporate governance and the strengthening of compliance practices.
With the publication of the Anti-Corruption Law (Law No. 12,846/13), there is a growing number of companies that adopt corporate integrity programs concerned with establishing adequate parameters for the relationship with private and, above all, public entities. In this context, Decree No. 9,764/2019 serves as a relevant legal reference to guide the drafting of corporate policies on this type of relationship.
The normative text of the decree establishes that bodies and entities of the federal Public Administration, semi-autonomous entities, and foundational bodies, provided without cost or charges, receive movable property or services from individuals or legal entities governed by private law, having as its purpose attendance to certain public interests or public needs. The regulations do not cover entities that are part of the indirect federal Public Administration, notably public companies and mixed capital companies, and do not apply to entities and bodies of the Public Administration of the states, municipalities, and the Federal District.
Bearing in mind the principles governing the Public Administration, donations should aim to promote improvements in public management, that is, they should be directed to a specific public body or entity, and not to specific public a gents. In this manner, the donor mitigates risks related to violation of the principle of administrative morality and, especially, questions of undue benefits to public agents.
A key point of the decree is the determination that donations be made free of charge or costs. This means that the Public Administration is authorized to receive donated movable property and services, provided that it does not assume the obligation to provide consideration in favor of the donor or third parties. On this point, the decree dealt specifically with the issue of advertising linked to the donation, stating that, as a rule, the use of movable property and services donated for publicity purposes is prohibited, except for, as soon as possible after delivery of the goods or provision of services, an indication of the donation on the donor's website or a mention by name of the donor on the website of the beneficiary body or entity when it is aid to a government program or project.
Another relevant aspect of the decree concerns the formal procedures for receiving donations: public calls (when the donation initiative arises from the Public Administration itself) or manifestation of interest (when a private entity announces the intent to make the donation on the website reuse.gov, created for this purpose). The conditioning of the donations on the completion of one of these procedures aims to ensure publicity and transparency of public acts and, mainly, equal treatment in relation to other interested parties, facilitating their cooperation with the Public Administration under the same rules and conditions.
With Decree No. 9,764/19, the expectation is that private players will feel more secure in cooperating with the federal Public Administration, just as occurred in other levels of government that have published similar rules. This is the case of the Municipality of São Paulo, with Decree No. 58,102/18, and the Government of the State of Minas Gerais, with State Decree No. 47,611/19.