Decree No. 7970, Of 28 March 2013

Original Language Title: Decreto nº 7.970, de 28 de março de 2013

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DECREE N °-7,970, DE March 28, 2013

Regulation devices of Law No. 12,598 of March 22, 2012 laying down special standards for purchases, hiring and development of defence products and systems, and gives other arrangements.

THE PRESIDENT OF THE REPUBLIC, in the use of the assignments that confers him on art. 84, caput, incisos IV and VI, paragraph "a", of the Constitution, and in view of the provisions of Law No. 12,598 of March 22, 2012,

D E C R E T A:

CHAPTER I

PRELIMINARY PROVISIONS

Art. 1º This Decree regulates devices from Law No. 12,598 of March 22, 2012.

Single Paragraph. The Special Taxation Regime for the Defence Industry-RETID, provided for in Law No. 12,598 of 2012, will be regulated by specific act.

CHAPTER II

OF THE MIXED DEFENCE INDUSTRY

Art. 2º The Mist Commission of the Defence Industry-CMID is set up, with the purpose of advising the Minister of State for Defence in decision-making processes and in propositions of acts related to the national defence industry.

§ 1º CMID has the following assignments:

I-propose and coordinate studies concerning the national policy of the defence industry ;

II-promote the integration between the Ministry of Defence and public and private bodies and entities related to the industrial defence base ;

III-issue opinion and propose to the Minister of State for Defence the classifications of goods, services, works or information pursuant to the inciso I of the caput of the art. 2 ° of Law No. 12,598, 2012, as Defence Product-PRODE ;

IV-to deliver opinion and propose to the Minister of State of Defense the inter-related or interactive set classifications of Defence Product as Defense System-SD, pursuant to the inciso III of the art's caput . 2 ° of Law No. 12,598, 2012 ;

V-propose to the Minister of State for Defence the classification of PRODE as Strategic Defense Product-PED, pursuant to the inciso II of the art's caput . 2º of Law No. 12,598, 2012 ;

VI-propose to the Minister of State for Defense the Accreditation of Defense Company as a Strategic Defense Company, pursuant to the inciso IV of the art's caput . 2 ° of Law No. 12,598, 2012 ;

VII-propose to the Minister of State for Political Defense and guidelines on procurement, import and financing processes of which they treat the arts. 3 °, 4 ° and 6 ° of Law No. 12,598, 2012 ; and

VIII-appreciate and issue opinion on the Special Bidding Terms-TLE.

§ 2º The CMID is composed of:

I-four representatives of the Central Administration of the Ministry of Defense ;

II-a representative of the Navy Command ;

III-a representative of the Army Command ; and

IV-a representative of the Aeronautical Command.

V-a representative of the Ministry of Finance

VI-a representative of the Ministry of Development, Industry and Exterior Trade ;

VII-a representative of the Ministry of Science, Technology and Innovation ; and

VIII-a representative of the Ministry of Planning, Budget and Management.

§ 3º CMID participants should be official-generals or, in the case of civil servants, occupiers of office in Group commission-Direction and Superiors-DAS, at minimum, level 101.5, may the alternate member be occupant of office in Committee of the Group-Direction and Superiors-DAS, at a minimum, of level 101.4.

§ 4º The CMID will be able to invite to its meetings, in extraordinary character, representatives of other public and private bodies and entities.

§ 5º The CMID will be able to create thematic subcommittees consisting of public and private bodies and entities with the aim, among others, of:

I-establish flow of exchange of information and experiences between the defense sector business and the members of the public bodies ;

II-analyse and deepen studies and propose solutions for the subjects presented ;

III-study and recommend the proposal, to government bodies, of economic and financial policy initiatives to institute special conditions of access for strategic defence companies to financing within the System National Financial ; and

IV-monitor the impacts of funding mechanisms on the financial structure of the Strategic Defense-EED Companies.

Art. 3 The participation in the CMID, including in its thematic subcommittees, will not cover any remuneration for its members and the work in them will be considered to be the provision of relevant public service.

CHAPTER III

DAS CLASSIFICATIONS AND ACCREDITATIONS

I Section

Of Defense Products, of Strategic Defense Products

and the Defense Systems

Art. 4 ° The defence products will be catalogued as per the standards and procedures compatible with the Armed Forces Catalogation System of the Armed Forces-SISMICAT.

§ 1º Products not covered by SISMICAT and those in the inclusion phase could be classified as PRODE, per CMID proposal and at the discretion of the Ministry of Defence, considered their participation in the productive chain of industry national defense or its finalistic defense destination.

§ 2º The Ministry of Defence will be able to authorize public and private entities to install and operate cataloguing units, as per SISMICAT compliant standards and procedures, with the approval of the products to the Centre for Cataloguing of the Armed Forces-CECAFA.

Art. 5 ° By proposal of CMID, PRODE considered of strategic interest for national defence due to technological content, difficulty obtaining or its printability will be classified as PED, per act of the Minister of State of the Defense.

Art. 6 ° By proposal of CMID, the defense systems? SD will be identified and classified by act of the Minister of State for Defence.

Section II

From Defense Companies and Strategic Defense Companies

Art. 7 ° Companies interested in obtaining accreditation in SISMICAT as a Defense-ED Company, should apply for it in SISMICAT, presenting the Productive Process Statement-DPP or the National Content Declaration-DCN of its PRODE or SD.

§ 1º Consider ED, for the purposes of the provisions of the caput and in this Decree, the legal person enrolled in accordance with SISMICAT standards, which produces or integrates the productive chain of PRODE.

§ 2º The DPP, issued under the terms established by the Ministry of Development, Industry and Foreign Trade, specifies the manufacturing or development of PRODE or of national SD, measured in accordance with cost appropriations and development, and technological innovation, realized in the Country.

§ 3º DCN, of self-declaratory character, is issued by the company, and expresses the degree of nationalization of PRODE or SD, measured in accordance with the costs appropriations of inputs and the processes of the productive chain, specifying, when couber, development and technological innovation performed in the Country.

§ 4º The solicitation of accreditation is to be made to the Centre for Catalogation of the Armed Forces-CECAFA or other cataloguing units provided for in § 2 ° of the art. 6 °.

§ 5º Companies will be able to be accredited as ED, per CMID proposal and considered to be DPP or DCN of their respective products.

§ 6º Caberá to the Ministry of Defence, in articulation with the Ministry of Development, Industry and Foreign Trade, with the Ministry of Science, Technology and Innovation and, where necessary, with other public bodies, to check the compliance of the DPP or DCN.

Art. 8º ED, per CMID proposal, will be able to be accredited as EED per act of the Minister of State for Defence.

Single Paragraph. Accreditation requests such as EED will be forwarded to the Ministry of Defense, on the initiative of the ED.

Art. 9º. ED and EED, when participating in tenders, should submit guarantees so that, in the case of discontinuity of the production of a PED or in the occurrence of the closure of the legal person relating to the strategic area of defence, without successor equivalent that ensures their perenity, is ensured the continuity of technological and productive capacity-building in the Country, such as:

I-transfer to the Union, when requested, from the technology related to PED ;

II-provision of technological and productive capacity for other EED ;

III-authorization of production, under licence, by other EED ;

IV-transfer of intellectual property ;

V-resarcement of investments made by the Union ; or

VI-presentation of real guarantees.

Art. 10. Guarded the industrial secret and for the composition of the composition of the statistical data of the sector, the companies accredited by Law No. 12,598 of 2012 should refer to the Ministry of Defence and the Ministry of Development, Industry and Foreign trade, annual reports of results on production, trade and labor market, and impacts on the chain of the defence industrial base, as interministerial act exorted by the mentioned ministries.

Art. 11. It will be described to EED that it will cease to meet the conditions laid down in the article's inciso IV of the art. 2º of Law No. 12,598, 2012.

CHAPTER IV

DA PURCHASE, FROM CONTRACTING

AND OF PRODUCT DEVELOPMENT

AND DEFENSE SYSTEMS

Art. 12. The acquisitions of which treats § 1º of the art. 3º of Law No. 12,598, 2012, should be preceded by Special Bidding Term-TLE.

§ 1 The TLE should be confected by the bidding organ, with indication of the object clearly and accurately, and present the analysis between benefit and cost and the reasons for the option of use of the bidder procedure covered by the Law No. 12,598, from 2012.

§ 2 ° The TLE, in what couber, will indicate:

I-minimum percentage of national content ;

II-innovative capacity required ;

III-contribution to increase the technological and productive capacity of the defence industrial base, expected as a result of hiring ;

IV-sustainability of the life cycle of PRODE ;

V-guarantee of continuity of technological and productive capacity-building to be required ;

VI-possible conditions of funding ; and

VII-parameters for valuation of the relationship between benefit and cost.

Art. 13. The participation of the companies in the tenders of which it treats § 1º of the art. 3º of Law No. 12,598, 2012, will be conditional on the provisions of the arts. 9º or 10 of this Decree.

Single Paragraph. Enrollment as ED can be requested at any time, even after the open of the tender procedure.

Art. 14. When permitted participation in the bidding of legal persons organized in consortium that it treats § 4º of Art 3º of Law No. 12,598 of 2012, the following conditions will be observed:

I-proof of the public or particular commitment of consortium constitution, subscribed by the consortiates ;

II-indication of the legal person in charge of the consortium, which should meet the conditions of leadership fixed in the conventional instrument ;

III-submission of the documents required in the convener instrument as to each consort, admitting, for technical qualification effect, the sum of the quantitative of each consort ;

IV-proof of economic and financial qualification, upon demonstration, by consorciate, of the fulfillment to the accounting requirements defined in the convocatory instrument ; and

V-impediment of consortium participation in the same tender, in more than one consortium or in isolation, by means of its subsidiaries, coalitions or other companies belonging to the business group of the consort.

§ 1º The convening instrument should require that it be a sympathetic liability clause:

I-in the commitment to consortium constitution, to be firmed by the bidders ; and

II-in the contract to be celebrated by the winning consortium.

§ 2º In the consortium of Brazilian and foreign companies the leadership will necessarily fall to the Brazilian company, observed the willing in the inciso I of § 4º of the art. 3º of Law No. 12,598, 2012.

§ 3º The winning bidder will be required to promote, prior to the conclusion of the contract, the constitution and registration of the consortium, in accordance with the commitment referred to in the caput of § 4 ° art. 3 ° of Law No. 12,598, 2012.

§ 4º The convener instrument may require from the consortium the establishment of specific purpose society, the constitution of which will observe the conditions of art. 9º of Law No. 11,079 of December 30, 2004.

Art. 15. It is incumbent upon the Ministry of Defence, heard the CMID, in the cases provided for in § 1 ° of the art. 3 ° of Law No. 12,598, 2012, authorize the tender procedure.

Art. 16. Imports of PRODE or SD that involve commercial, technological or industrial compensation will be authorized and accompanied by the Ministry of Defence, heard the CMID.

Single Paragraph. Proven to be impossible to meet the demand for commercial, technological or industrial compensation, the Ministry of Defence, heard the CMID, may authorize the import, regardless of compensation.

CHAPTER V

DOS FINANCING TO STRATEGIC COMPANIES

DE DEFESA

Art. 17. The EED will have access to funding for programs, projects and shares concerning, respectively, national defense goods and services that it treats the inciso I of the art's caput . 8º of Law No. 12,598, 2012, and PED, under the specific legislation.

Art. 18. For the purposes of the art. 6 ° of Law No. 12,598, 2012, funding will be prioritized to meet the guidelines of the National Defense Strategy, projects involving technological empowerment, production and development of local content.

CHAPTER VI

FINAL PROVISIONS

Art. 19. It will be up to the Ministers of State to expedite complementary standards and procedures for the implementation of this Decree within the framework of their competences.

Art. 20. The Ministry of Defense will be able to credit and hire companies with the ability to attest to the national content of PRODE, PED or SD and their productive chains.

Art. 21. Law No. 8,666 of June 21, 1993 will be applied in a subsidiary manner to Law No. 12,598 of 2012, and to that set out in this Decree.

Art. 22. This Decree shall enter into force on the date of its publication.

Brasilia, March 28, 2013 ; 192º of Independence and 125º of the Republic.

DILMA ROUSSEFF

Celso Luiz Nunes Amorim

Guido Mantega

Fernando Damata Pimentel

Miriam Belchior

Marco Antonio Raupp