Obrigatoriedade dos programas de compliance na contratação com a administração pública estadual: crítica e pilares a serem observados para uma Conformidade Estadual Ampla

Abstract

The present work aims to study the state legislations that establish the mandatory adoption of integrity programs in companies as a mandatory requirement for contracting with the Public Administration, in order to analyze the normative symmetries and asymmetries between the respective legislations. Upon entering the subject, it is appropriate to assess the compliance institute as a tool for the prevention of illegal conduct within the company, as well as an instrument at the service of compliance with the policies and its code of conduct, starting from the analysis of the federal legislation that incorporated the compliance programs in the Brazilian legal scenario (Law 12,846/13). For that, it analyzes the legislation of the Brazilian states that have already implemented such obligation in the formalization of their contracts. Furthermore, it proposes the analysis of the pillars of a compliance program for the improvement and construction of an Integrity Program aimed primarily at overcoming the legal asymmetries of the state standards and at preventing the risks arising from the non-adoption of programs in a compulsory manner in contracts with the government. The results obtained show the importance of the compliance institute as a tool to prevent the incidence of fines and other penalties for institutions that contract with states that oblige their suppliers and service providers to adopt the Integrity Programs and identify the main pillars of the Program of Integrity, namely: (i) Commitment and support from senior management; (ii) Risk analysis; (iii) Code of ethics or company conduct and policies; (iv) Internal controls; (v) Education, training and communication; (vi) Detection and sanction mechanism, and the; (vii) Audits and monitoring.