Policy of Interaction with Public Agents
Presentation
ABES 'Policy on Interaction with Public Agents was launched in March 2018 and is part of our Integrity Program, through which the association reiterates its commitment to ethics, transparency, the fight against corruption and fair competition. know more on here.
Get to know the Policy for Interaction with Public Agents below or download the in PDF.
POLICY FOR INTERACTION WITH PUBLIC AGENTS OF ABES
Approved on March 26, 2018.
The Brazilian Association of Software Companies ("ABES") sanctions the rules below, formalizing common rules for all its Associates, employees, third-party service providers and other employees.
This standard was approved by the ABES Deliberative Council, following a proposal presented by its Executive Board, and will come into force on March 26, 2018.
1. Definitions
2. Guidelines
3. Principles
4. Anti-corruption provisions
5. General rules
6. Government Relations
7. Associations
8. Issuance of certificates
9. Inspection activity
10. Study groups and committees
11. Sanctions
12. Reporting Channel
13. Other provisions
1. Definitions
For the purposes of the Policy for Interaction with Public Agents, the terms defined below will have the following meanings, whether singular or plural and regardless of gender:
I. ABES: Brazilian Association of Software Companies;
II. Associate: company associated with ABES;
III. Public Agent: any agent, representative, employee, employee, director, advisor or any person exercising, even temporarily and without remuneration, position, function or employment, elected or appointed, in any entity, department, government agency, including any entities of the Executive branches , Legislative and Judiciary, direct or indirect public administration, mixed economy companies, public foundations, national or foreign, international public organization, or any political party, including candidates running for public office in Brazil or abroad;
IV. Members: all people working at ABES, including board members, directors, committee coordinators, employees, interns and apprentices;
V. Anti-Corruption Laws: Law 12,846, of August 1, 2013 and Decree No. 8,420, of March 18, 2015;
SAW. Undue advantage: any kind of benefit, economic or not, such as money in cash, movable and immovable property, gifts, hospitality, courtesies, services and favors, placed at the disposal of a determined Public Agent or a third party that relates to him, contrary to the law or authorized;
VII. Policy of Interaction with Public Agents: Policy;
VIII. The 3rd: means any person, whether physical or legal, who acts on behalf, in the interest or for the benefit of ABES, provides services or provides other goods, as well as business partners, including, without limitation, agents, consultants, suppliers, resellers or other providers services.
2. Guidelines
The formulation of this Policy was based on the missions, principles and values of ABES and in accordance with current legislation, including, but not limited to, the Anti-Corruption Law.
The provisions of this Policy must be observed by all Associates, Members of ABES, Third Parties that provide any type of service to ABES, whether directly or indirectly, as well as associations or any other entities or individuals or legal entities with whom ABES interacts in a sporadic or habitual way.
3. Principles
In addition to the general principles already mentioned in ABES Code of Ethics and Conduct, all interactions between Associates, Members or Third Parties and Public Agents, on behalf or for the benefit of ABES, shall be based on the following specific principles:
I. Probity: Acts that aim to circumvent or improperly influence Public Officials to act or remain silent against the public interest should not be practiced.
II. Accuracy in language: the language in all communications with Public Agents must be as precise and technical as possible, in order to avoid misinterpretations on the topics covered. Terms or expressions should not be used that only people who maintain that communication are able to understand them.
III. Record of information: whenever possible, the information exchanged with Public Agents in meetings or other meetings (in person, by videoconference or by means of telephone calls) must be formalized in writing in minutes and, subsequently, stored. In addition, the names of the participants of the meetings or meetings, the position they occupy, the name of the institution or body to which they are linked, the date, time and the topics that have been dealt with in these meetings must appear in these minutes.
4. Anti-corruption provisions
Associates, Members, Third Parties and other ABES employees must be made aware of the sanctions that may arise from noncompliance with the Anti-Corruption Law, with emphasis on the provision of strict liability based on that law.
Remember that strict liability does not require proof of intent or guilt. Thus, even if no action was taken with the intention of committing an act of corruption, if the action or omission in question is framed in the following hypotheses, there may be liability based on the Anti-Corruption Law:
I. Promise, offer or give, directly or indirectly, undue advantage to a Public Agent, or the third person related to it.
II. Proven to finance, fund, sponsor or in any way subsidize the practice of illegal acts provided for in the Anti-Corruption Law.
III. Proven to use an individual or legal entity to conceal or conceal their real interests or the identity of the beneficiaries of the acts performed.
IV. With regard to bids and contracts: a) frustrate or defraud, by means of adjustment, combination or any other expedient, the competitive nature of the public bidding procedure; b) prevent, disturb or defraud the performance of any act of public bidding procedure; c) remove or seek to remove a bidder, by means of fraud or offering an advantage of any kind; d) defrauding public bidding or contract resulting from it; e) create, in a fraudulent or irregular manner, a legal entity to participate in a public bidding process or enter into an administrative contract; f) obtaining an improper advantage or benefit, in a fraudulent manner, from modifications or extensions of contracts entered into with the public administration, without authorization by law, in the call for tenders or in the respective contractual instruments; or g) manipulating or defrauding the economic-financial balance of contracts entered into with the public administration.
V. Hinder the investigation or inspection activity of agencies, entities or Public Agents, or intervene in their performance, including within the scope of the regulatory agencies and the inspection bodies of the national financial system.
The interaction with public agents increases the risk of framing conducts in the aforementioned hypotheses. Accordingly, all persons covered by this Policy must be vigilant so that none of their acts can generate liability based on the Anti-Corruption Law.
For example, the employee who promises or offers some type of benefit, such as money, meals and trips to Public Agents (public banks, public authorities, members of the Legislative Branch, etc.), aiming at making them perform acts of office more quickly. or more beneficial to ABES or its Associates will violate the Anti-Corruption Law. There will be no need to deliver the promised or offered benefit, whether by refusal or not by the Public Agent itself, so that the infraction in question is configured.
4.1 – Anti-Corruption Clause
All contracts entered into with ABES must contain an anti-corruption clause, as well as all Associates and all Third Parties must be encouraged to adopt anti-corruption clauses in other contracts that they may enter into.
5. General rules
5.1 – Events, Recognitions and Awards
Only Public Agents, especially political agents, whose functions, studies or academic background are related to the demands of the software sector may be invited to participate as a speaker in events promoted or held by ABES. Invitations motivated exclusively by personal proximity between Members, Third Parties or Associates of ABES with Public Agents will not be allowed.
All awards and recognitions granted by ABES to public figures must be analyzed and granted by a Recognition Committee, subordinate to the Board.
PRACTICAL CASE: ABES employee, who collaborates in the organization of events held by the association, invites one of his friends, a member of the Public Ministry, to participate in the ABES Software Conference. It appears, however, that all professional and academic performance of the guest is mainly focused on issues that are not related to the software sector.
The mentioned conduct is prohibited by this Policy. The invitation would only be valid if the member of the Public Ministry had his professional or academic performance focused on issues that were related to the software sector, including matters, not only about technology, public policies, but also about taxation in general, fostering the private sector, economy in general, public budget, interest rate and other subjects other economic and financial matters of interest to the sector.
5.2 – Meetings
Meetings with Public Agents must be previously scheduled, knowing in advance the topics that will be addressed, where the meetings will be held and who is likely to be present at them. ABES is prohibited from defraying expenses to its employees, directors, third party service providers related to meetings with Public Agents that are not in accordance with the mentioned guidelines.
After or during these meetings, minutes must be written with the content actually dealt with, and the people who participated in them. These minutes must be presented to the Executive Board of ABES and, subsequently, filed.
Meetings or any other types of meetings with Public Agents in which only one ABES representative is present should be avoided. In these interactions, topics that cannot be dealt with in public are prohibited, unless they provide confidential or sensitive information necessary for discussions.
6. Government Relations
ABES 'government relations activity is related to its performance before the Public Power, aiming to achieve benefits for the software sector and, consequently, for its Associates. As a result of this activity, by way of example, laws dealing with tax matters that have a positive impact on the software sector may be enacted or financing and lines of credit obtained with special conditions for companies that produce or develop software in Brazil.
Government relations activity requires frequent interaction with Public Agents, especially political agents (such as parliamentarians, members of ministries, etc.), which is why it is the object of this Policy. Therefore, we emphasize that all meetings with Public Agents in the pursuit of this activity must be in accordance, in particular, with the provisions of item 5.2 of this Policy.
6.1 – Credit and financing lines
ABES directors will be able to present suggestions, technical opinions and participate in studies that may influence the obtaining of more favorable credit lines and financing for members of the software sector in Brazil and, consequently, for Associates. In general, these financing and credit lines are obtained from public banks.
In carrying out the activities described in this topic, ABES Members will be exposed to interactions with Public Agents, above all, employees of public banks. In such situations, all provisions of this Policy must be observed.
In addition, the activities performed by Members before public banks and other agents aiming at obtaining these lines of credit and financing do not imply the receipt or management of public resources by ABES. Thus, it is stated that ABES will not be able to receive or manage public resources of any kind, even if in a timely manner. All resources available to ABES must come exclusively from the fees of its Associates and other services eventually provided, as provided in its Bylaws, such as the provision of services to members, such as the issuance of certificates, the carrying out of events, such as the ABES Software Conference, among others.
6.2 – Government relations companies
Government relations companies may be hired by ABES, and must act in accordance with the provisions of this Policy. These companies must sign a term certifying their knowledge and agreement on this Policy, as well as their contracts with ABES must contain an anti-corruption clause, as indicated in item 4.1.
ABES may terminate service provision contracts with government relations companies that are involved in investigations, administrative or judicial proceedings related to the practice of acts of corruption, administrative impropriety, money laundering or other legal infractions considered serious.
7. Associations
7.1 – Partnership contracts
ABES 'Executive Board may approve the signing of partnership contracts between ABES and other associations that cultivate the same principles and values. Through these partnerships, it will be possible for ABES and the other associations to represent each other, when necessary, as well as share studies and discuss topics of interest to the software sector.
Once a partnership contract is signed, ABES will be able to monitor the actions of the associations, especially if they frequently interact with Public Agents or receive public resources.
The concern of ABES in relation to Associations that represent it before agents or public bodies is justified by the fact that the acts practiced by these associations on behalf of ABES may imply their administrative, civil and / or criminal liability, above all, for acts of corruption.
ABES may terminate partnership contracts with associations that may be involved in investigations, administrative or judicial proceedings related to the practice of acts of corruption, administrative impropriety, money laundering or other legal infractions considered serious.
8. Issuance of certificates
Some of the certificates issued by ABES can be used for the participation of its Associates in bidding processes. Thus, in view of the fact that these certificates will be presented to Public Agents, all necessary care must be taken so that incorrect or false data are not inserted in them.
9. Inspection activity
The obstruction of inspections or inspections of organs, entities or Public Agents in ABES facilities may constitute the crime of corruption. Thus, the people covered by this Policy should never prevent or hinder the activities mentioned on ABES 'premises.
It is forbidden to offer any type of undue advantage to inspectors so that they do not proceed with inspections or checks or perform them in disagreement with regular procedures.
10. Study groups and committees
Only in exceptional cases, Public Agents may be invited to participate in study groups and committees promoted internally by ABES. In addition, the participation of these agents must be recorded in the respective minutes.
The participation of Members in study groups and external committees in which Public Agents regularly participate should be communicated to the Executive Board of ABES.
11. Sanctions
Any violations of this Policy by Associates, Members, Third Parties or other employees of ABES must be reported to the Compliance Officer and the Executive Director of ABES, who will carry out the first assessment of the communication.
Associates that incur the violations mentioned in the previous paragraph may be subject to the following penalties:
I. Suspension of the right to vote at the next Assembly;
II. Reserved written warning;
III. Written, public warning;
IV. Temporary suspension of associative rights; and
V. Exclusion from membership.
Members who incur the aforementioned violations may be subject to warning or dismissal sanctions and Third Parties, in turn, will be subject to termination or contract termination sanctions.
In addition to the sanctions provided for in this Policy, in the event that the infractions constitute a crime, ABES may inform the competent authorities or adopt the appropriate administrative or judicial measures.
The sanctions provided for in this Policy will be applied taking into account the seriousness of the acts performed.
12. Reporting Channel
Associates, Members and Third Parties have a duty to report to ABES the occurrence of any violation or suspected violation of the provisions of this Policy or any current Brazilian law. To this end, ABES will provide a Reporting Channel, which will allow for the proper handling of communications of irregularities identified in a secure manner, and, if desired, anonymous.
Retaliation against anyone who, in good faith, reports a concern about illegal or non-compliant conduct with the instructions set out in this document will not be permitted and tolerated.
13. Other provisions
The provisions of this Policy shall be valid for a minimum period of 1 (one) year, when its revision must be carried out.
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