Contractual style of’ contractor ‘ establishes a larger set of obligations of the contractor
Since the celebration of the World Cup in Brazil in 2014 and until the present day, especially in the Government of Jair Bolsonaro with the increase in concessions for public services, oil and gas energy, EPC contracts have gained prominence as a priority of celebration because of the greater transparency and security in their execution.
How is the construction of airports, construction of solar parks, stadium renovations and large enterprises in Brazil? If you have thought about building contracts you are not totally wrong!
In Brazil, the classic figures of construction contracts have always been adopted, namely, the contract and construction by administration or at cost price. The contract is foreseen in the Civil Code and the construction by administration is foreseen in law n. 4.591 of December 16, 1964.
However, due to the growing infrastructure needs in Brazil, contracting parties began to use strange construction contract models that proved effective in other countries, such as the Engineering Procurement and Construction (“EPC contract”) which brings together various elements such as construction, commissioning, purchase and assembly of equipment, all in one document!
In Portuguese, the acronym EPC stands for engineering, purchasing and construction management. Regarding its concept, the EPC is a contracting modality in which the builder executes the project in its entirety, ensuring the integral execution of the scope, the elaboration of architectural and engineering projects, details and assembly schemes, in addition to all the basic services for the execution of the project: supply of labor, materials and equipment necessary for the realization of the activities.
Therefore, they are characterized by being contracts referring to the execution of large projects, high cost, long term planning and execution, specialized technical team and large number of suppliers.
It is precisely for these reasons that the term EPC is usually used as a synonym for Turn-key, a term already introduced in this article, since it is up to the owner of the work, after receiving the project by the contractor (“Epecista”[1]), only “turn the key” since the enterprise is in immediate operating condition.
Regarding their legal nature, the majority doctrine, such as that of Orlando Gomes[2], classifies “EPC” contracts as an atypical and mixed contract, since they do not fit into any of the contractual species disciplined by the Civil Code, but at the same time, it encompasses several typical contracts, such as that of construction.
On the other hand, Fabio Ulhôa Coelho[3], for example, understands that EPC contracts are equivalent to a large contract, involving from the development of the project to its execution, associated with the contractor’s obligation to obtain financing for the work and provide technical advisory services related to the implementation of the project.
Due to this impasse, it is possible to verify that the construction contracts and EPC have several points in common, however, their points of incongruity are more important than the characteristics that bring them closer.
In this tuning fork, we draw up an intuitive table that reveal your main disagreements:
Table 1 adapted table-elaborated by the author Clara Drumond Degrazia Ribeiro, 2018, PUC-RIO.
An interesting aspect illustrated in the table is that contracts under the EPC-Turnkey modality attribute most of the contractual risks to the contractor, or rather, to the “Epecist”. Consequently, this even concretizes the possibility of the “Epecista” to include in its proposal of services prices and extra deadlines for “congestion”, due to the imminent risks to the execution of the works.[4]
For experts, the great advantage of using this atypical contract is that everything is concentrated in the hands of only one supplier. Thus, the client only needs to run a single contractor company. Likewise, in case something does not go as planned, only one company should take responsibility before the contractor.
On the other hand, due to the possibility of including extra prices (increasing the cost to the customer), many companies are migrating to contracts called EPCM that indicate, in Portuguese, “engineering, purchase and construction management”.
It is also a Turnkey method. Despite the similar name, in this modality, the stages of development of the project and the materials necessary to carry it out are also present. However, this contract does not carry out construction, but construction management.
In other words, in the EPCM contracting modality, it is an activity that basically consists of Project Management. And from the development of the project, the client will hire the others responsible for the work.
In this case, the client continues to have to make all the contracts, but who supervises the works and manages them is the company contracted by the EPCM model.
As an example, in 2018, Poyry, an international engineering company, announced the signing of an EPCM contract for a large company in the food sector in Brazil. The scope included detailed engineering services, supplies and the management of the construction and assembly of a plant in the state of Santa Catarina.[5]
Finally, for a greater understanding of the topic, we separate some advantages and disadvantages of the two EPC and EPCM models that can be seen below:
Rafael De Sordi Barbosa Martins
Junior lawyer at TM Advogados and postgraduate at GV Law-Business Law.
Leonardo Da Vinci
Founding partner at TM Advogados and Master in political and Economic Law from Universidade Presbiteriana Mackenzie.
[1] Pecist: the contractor, the ” contractor”
[2] GOMES, Orlando. Work cited, P.468. In the same sense Leonardo Dias da Silva Telles, engineering contract. LTr, São Paulo, 2010, P.105.
[3] COELHO, Fábio Ulhoa. Course of Civil Law, v. 3. Saraiva, São Paulo, 2017, p. 46.
[4] for a better understanding of the topic, it is recommended: MARCONDES, Fernando. Themes of Construction Law: construction contracts, 2015.
[5] available at: https://www.poyry.com.br/not%C3%ADcias/poyry-anuncia-contrato-epcm-para-industria-de-alimentos-no-brasil
STF autoriza prorrogação no prazo de adesão ao acordo dos planos econômicos
Com o aditivo, a Corte prorrogou pelo prazo de 30 meses a adesão ao acordo.
O Supremo Tribunal Federal (STF) homologou o Termo Aditivo ao Acordo Coletivo de Planos Econômicos (pagamento das diferenças de expurgos inflacionários relativos aos planos econômicos Bresser, Verão e Collor II.) pelo prazo de 30 meses, ao término do qual as partes deverão prestar contas do número de aderentes e valores recebidos e a receber, para eventual prorrogação por mais 30 meses.
O aditivo foi acertado entre AGU e representantes de entidades civis de defesa do consumidor, de poupadores e de instituições financeiras. O plenário do STF homologou, em 2018, o acordo inicial.
No termo aditivo, as partes informaram ao relator que o número de adesões ao acordo foi inferior ao inicialmente esperado, o que justifica o aprimoramento dos termos para a inclusão do plano Collor I e para o incremento das adesões.
Para essa finalidade, o aditivo incluiu poupadores com contas em instituições financeiras abrangidas pelo PROER; estendeu a data de corte estabelecida para a elegibilidade de poupadores que executam sentenças coletivas ainda não transitadas em julgado; e previu incentivos financeiros, como pagamentos em parcela única e elevação da verba honorária para 15% do valor do acordo.
Ao receber o aditivo, Lewandowski determinou a publicação no DOU e levou ao plenário para homologação, a fim de dar a maior publicidade possível às cláusulas e às condições do contrato. Segundo o ministro, somente assim os interessados poderão fazer livremente a sua opção de aderir ou de rejeitar o acordo, “da maneira mais consciente possível“.
O ministro avaliou como “o maior caso de litigiosidade repetitiva de que se tem notícia na história do Judiciário nacional”.
O acordo tinha vigência até março deste ano. Com o aditivo, a Corte prorrogou pelo prazo de 30 meses a adesão ao acordo, ao término do qual as partes deverão prestar contas do número de aderentes e valores recebidos e a receber, para eventual prorrogação por mais 30 meses.
Veja o acórdão fazendo download abaixo:
PlanosDownload
Working on an early holiday: How is the payment of wages?
Your company will not stop on 05/25/2020? How is the payment of employee salaries?
First of all, it is worth remembering who determines how the working day of employees will work is the company itself.
According to labor legislation, as a rule, work on civil and religious holidays is prohibited, and the payment of wages for days worked as a paid weekly rest is mandatory.
However, in cases where it is not possible to “stop work” due to COVID-19, companies can summon workers on holidays, even during the state of public calamity.
The professional who works on the holiday is entitled to receive the day in double or a compensatory day off. Without prejudice to salary.
According to Law No. 605/49 “ ” in activities in which it is not possible, due to the technical requirements of companies, the suspension of work, on civil and religious holidays, the remuneration will be paid in double, unless the employer determines another day off”
It should be noted that the consolidation of labor laws (CLT) does not deal specifically with the theme of the holiday, since there is only a simple reference in Article 70, saying that holidays will be the subject of their own legislation, whose regulation occurred through law 605/1949, highlighted above.
Finally, it is necessary to respect all the benefits provided for in a collective agreement for a working day on a holiday, if the work actually happens.
It is illegal to prepay compensation due to the trade representative for unmotivated termination
The 3rd Class of the STJ, judged to be illegal contractual clause that provides for advance payment of compensation due to the commercial representative on the occasion of unjustified termination of the contract by The represented.
At the time of the trial, the court ruled that the compensation to which a commercial representative is entitled In case of unilateral termination of the representation contract should not be paid in advance, but rather at the time when the link with the represented company is severed.
In the case under analysis, a brush supplier from Paraná unilaterally broke a contract that it maintained for 13 years with a representation company. In the contract there was a clause that provided for the payment of compensation in case of unjustified termination — as mandated by Article 27, “i”, Of Law 4.886/1965 —, however, the represented company refused to do so on the grounds that it had already paid the compensation in advance, along with the commissions received throughout the execution of the contract.
The representation company then went to court, but was defeated in the first and second instances. The Court of Justice of Paraná understood that the advance payment was the result of an agreement and that during the term of the contract the representative never challenged the form of compensation.
On the other hand, the STJ understood differently. For the court, the advance payment was an irregular maneuver by the brush supplier.
“The obligation to repair the damage only arises after the practice of the act that causes it (by logical imperative), so that, before the existence of a concrete damage capable of being repaired — which, in kind, is the unmotivated rupture of the avença—, there can be no talk of compensation”
minister Nancy Andrighi.
Also according to the minister, the indemnity clause has a compensatory character and its payment in advance circumvents law 4.886/1965. Andrighi argued that if the defendant’s intention was to avoid payment in a single installment, she should have deposited the amounts in a linked account maintained for that purpose.
Thus, the court understood that there is an imbalance in the relationship between the represented and the representative and that, for this reason, it is necessary that the latter has some type of protection in order not to be harmed.
See the published judgment:
REPRESENTAÇÃO COMERCIAL
STJ: procedural deadlines suspended in July
The Superior Court of Justice (STJ) published on 09/06/2020 ordinance STJ/GP 210/2020, which suspends the procedural deadlines between 2 and 31 July. The period coincides with the vacation of ministers.
According to the ordinance, in civil cases, articles 219 and 224, paragraph 1, of the Code of Civil Procedure must be observed; in criminal cases, article 798, paragraphs 1 and 3, of the Code of Criminal Procedure.
After the holidays, the Judicial Year in the STJ will resume with a special court session on August 3.
Prt_210_2020_PREDownload
Dr. Leonardo, founding partner of TM Associados, is quoted in Bloomberg.
On 09/06/2020, our founding partner, Leonardo Theon de Moraes, spoke to Bloomberg, from New York, about how judicial activism in Brazil has influenced the suspension and closure of mining and meat companies in Brazil during the COVID-19 pandemic.
The article, entitled “Brazilian prosecutors begin to influence the commodities market in the era of Covid-19”, makes a contrast with the US, where authorities take measures to keep companies running while implementing measures to contain the coronavirus, while in Brazil, the courts accept requests from prosecutors to suspend or Close large refrigerators and mining operations in recent weeks.
As Leonardo pointed out, “what we have experienced in Brazil, even more so in this pandemic, is the growth of judicial activism, both by the courts and by prosecutors”
Check out the link of the integra of the matter below:
Do you know what EPC and EPCM – TURNKEY contracts are?
Contractual style of’ contractor ‘ establishes a larger set of obligations of the contractor
Since the celebration of the World Cup in Brazil in 2014 and until the present day, especially in the Government of Jair Bolsonaro with the increase in concessions for public services, oil and gas energy, EPC contracts have gained prominence as a priority of celebration because of the greater transparency and security in their execution.
How is the construction of airports, construction of solar parks, stadium renovations and large enterprises in Brazil? If you have thought about building contracts you are not totally wrong!
In Brazil, the classic figures of construction contracts have always been adopted, namely, the contract and construction by administration or at cost price. The contract is foreseen in the Civil Code and the construction by administration is foreseen in law n. 4.591 of December 16, 1964.
However, due to the growing infrastructure needs in Brazil, contracting parties began to use strange construction contract models that proved effective in other countries, such as the Engineering Procurement and Construction (“EPC contract”) which brings together various elements such as construction, commissioning, purchase and assembly of equipment, all in one document!
In Portuguese, the acronym EPC stands for engineering, purchasing and construction management. Regarding its concept, the EPC is a contracting modality in which the builder executes the project in its entirety, ensuring the integral execution of the scope, the elaboration of architectural and engineering projects, details and assembly schemes, in addition to all the basic services for the execution of the project: supply of labor, materials and equipment necessary for the realization of the activities.
Therefore, they are characterized by being contracts referring to the execution of large projects, high cost, long term planning and execution, specialized technical team and large number of suppliers.
It is precisely for these reasons that the term EPC is usually used as a synonym for Turn-key, a term already introduced in this article, since it is up to the owner of the work, after receiving the project by the contractor (“Epecista”[1]), only “turn the key” since the enterprise is in immediate operating condition.
Regarding their legal nature, the majority doctrine, such as that of Orlando Gomes[2], classifies “EPC” contracts as an atypical and mixed contract, since they do not fit into any of the contractual species disciplined by the Civil Code, but at the same time, it encompasses several typical contracts, such as that of construction.
On the other hand, Fabio Ulhôa Coelho[3], for example, understands that EPC contracts are equivalent to a large contract, involving from the development of the project to its execution, associated with the contractor’s obligation to obtain financing for the work and provide technical advisory services related to the implementation of the project.
Due to this impasse, it is possible to verify that the construction contracts and EPC have several points in common, however, their points of incongruity are more important than the characteristics that bring them closer.
In this tuning fork, we draw up an intuitive table that reveal your main disagreements:
Table 1 adapted table-elaborated by the author Clara Drumond Degrazia Ribeiro, 2018, PUC-RIO.
An interesting aspect illustrated in the table is that contracts under the EPC-Turnkey modality attribute most of the contractual risks to the contractor, or rather, to the “Epecist”. Consequently, this even concretizes the possibility of the “Epecista” to include in its proposal of services prices and extra deadlines for “congestion”, due to the imminent risks to the execution of the works.[4]
For experts, the great advantage of using this atypical contract is that everything is concentrated in the hands of only one supplier. Thus, the client only needs to run a single contractor company. Likewise, in case something does not go as planned, only one company should take responsibility before the contractor.
On the other hand, due to the possibility of including extra prices (increasing the cost to the customer), many companies are migrating to contracts called EPCM that indicate, in Portuguese, “engineering, purchase and construction management”.
It is also a Turnkey method. Despite the similar name, in this modality, the stages of development of the project and the materials necessary to carry it out are also present. However, this contract does not carry out construction, but construction management.
In other words, in the EPCM contracting modality, it is an activity that basically consists of Project Management. And from the development of the project, the client will hire the others responsible for the work.
In this case, the client continues to have to make all the contracts, but who supervises the works and manages them is the company contracted by the EPCM model.
As an example, in 2018, Poyry, an international engineering company, announced the signing of an EPCM contract for a large company in the food sector in Brazil. The scope included detailed engineering services, supplies and the management of the construction and assembly of a plant in the state of Santa Catarina.[5]
Finally, for a greater understanding of the topic, we separate some advantages and disadvantages of the two EPC and EPCM models that can be seen below:
Rafael De Sordi Barbosa Martins
Junior lawyer at TM Advogados and postgraduate at GV Law-Business Law.
Leonardo Da Vinci
Founding partner at TM Advogados and Master in political and Economic Law from Universidade Presbiteriana Mackenzie.
[1] Pecist: the contractor, the ” contractor”
[2] GOMES, Orlando. Work cited, P.468. In the same sense Leonardo Dias da Silva Telles, engineering contract. LTr, São Paulo, 2010, P.105.
[3] COELHO, Fábio Ulhoa. Course of Civil Law, v. 3. Saraiva, São Paulo, 2017, p. 46.
[4] for a better understanding of the topic, it is recommended: MARCONDES, Fernando. Themes of Construction Law: construction contracts, 2015.
[5] available at: https://www.poyry.com.br/not%C3%ADcias/poyry-anuncia-contrato-epcm-para-industria-de-alimentos-no-brasil
E-Social: Simplificações e mudanças ao sistema
No ano de 2019, existiram inúmeras especulações acerca da extinção do e-Social (sistema unificado utilizado por profissionais de Recursos Humanos, contadores, empregadores etc. para a transmissão de informações relacionadas à escrituração de obrigações fiscais, previdenciárias e trabalhistas ao governo).
Apesar de existirem notícias e declarações acerca da possível extinção do e-Social, o que temos visto ultimamente são pronunciamentos de autoridades e notícias acerca da atualização do sistema, através da reformulação de um “novo e-Social”, e possível criação de dois novos sistemas simplificados, cujas informações ainda são inexistentes.
Mas como ficaria a simplificação do sistema e-Social?
Primeiramente é importante destacar que o intuito de simplificação do e-Social pelo Governo é de reduzir as informações prestadas por profissionais de Recursos Humanos, contadores, empregadores etc., de forma a alcançar a desburocratização do sistema por seus usuários, tendo em vista a burocracia no que concerne a quantidade de informações exigidas por este a seus usuários, de forma a torná-lo complexo em sua utilização.
As mudanças a serem implementadas no e-Social se baseiam nos seguintes pontos:
Benefícios a serem gerados com a simplificação do e-Social
Os principais benefícios a serem alcançados pela simplificação do e-Social consistem em:
Conclusão
O presente artigo teve por finalidade expor simplificações e mudanças a serem implementadas pelo Governo ao sistema do e-Social, conforme pronunciado por autoridades competentes.
É de suma importância os empregadores, contadores, profissionais da área de Recursos Humanos etc. que utilizam o sistema do e-Social estarem atentos a futuras mudanças que poderão ocorrer no sistema do e-Social a fim de procederem com o necessário para se adaptarem a uma possível transição do sistema.
Geovana Caroline Silva de Andrade
Graduada em direito pelo Centro Universitário de Campo Limpo Paulista/SP (2016), inscrita na Ordem dos Advogados do Brasil, Seção de São Paulo (OAB/SP) (2018). Pós-graduada em Direito e Processo do Trabalho pela Faculdade Damásio de Jesus. Advogada na TM Associados
Bacen jud will be replaced by new platform in September.
It was announced by the Central Bank (BC) the development of Sisbajud (asset Search System of the judiciary), a new blocking system that will replace the Bacen jud.
According to the economic value, this electronic system of communication between the judiciary and financial institutions can also be used in the future for blocking cryptocurrencies.
The new system will make it possible to automate blocking orders, unblocks and transfers of funds to judicial accounts, since it has an “online attachment” system to the electronic judicial process (PJE)
According to the BC, Sisbajud is already in the testing phase that will last until the end of the year. The Bacen jud interface (layout) and the communication protocol were maintained during the testing phase so as not to cause impact throughout the process.
It is with great enthusiasm that Sisbajud is received by the various legal operators. One of the biggest problems experienced in the judicial process today is the delay in unlocking values, which in theory should occur within 24 hours as provided by the legislation.
As a curiosity, last year alone R$ 55,8 billion of debtors were blocked through Bacen Jud, according to the newspaper.
Check out the full sisbajud implementation statement by downloading the link below:
SISBAJUD-1Download
STF: it is Constitutional the incidence of ISS in franchise agreements
It is Constitutional the incidence of ISS-tax on services of any nature in franchise agreements. This is the latest decision of the STF.
As previously disclosed on our website, the STF plenary would decide for the constitutionality of the impact of the ISS on franchise agreements between the 22nd to the 28th of May.
And finally the decision came out. For the STF, the municipal tax is levied on franchising.
The issue was judged in the virtual plenary, in a vote that ended on Thursday, 28. The rapporteur, Minister Gilmar Mendes, was accompanied by Alexandre de Moraes, Edson Fachin, Cármen Lúcia, Luiz Fux, Rosa Weber, Ricardo Lewandowski and Roberto Barroso.
Minister Gilmar Mendes, rapporteur, voted to dismiss the appeal and fixed the following thesis:
“The incidence of tax on services of any nature (ISS) on franchise contracts (franchising) is constitutional (items 10.04 and 17.08 of the list of services provided for in the Annex to complementary law 116/03).”
Gilmar mendes
The full argument of the court was that it does not violate the constitutional text nor does it deviate from the current guidance of the court to charge ISS on franchise agreements. “It should be reiterated that franchise agreements are of a mixed or hybrid nature, which encompasses both obligations to give and to do”.
Gilmar Mendes was accompanied by Alexandre de Moraes, Edson Fachin, Carmen Lucia, Luiz Fux, Rosa Weber, Ricardo Lewandowski and Roberto Barroso.
You can read the integra of the decision by the link below:
ISS decision franchise agreements
Modelo de Termo de consentimento livre e esclarecido – COVID19
Salientamos que uma minuta não confere segurança jurídica à uma relação e deve ser sempre alterada/interpretada/produzida de acordo com a relação das partes e os reais objetivos da relação, não dispensando, por tanto, a assessoria jurídica.
Modelo para profissionais da saúde:
Termo-de-Consentimento- MédicosDownload
Modelo para profissionais de odontologia:
Termo-de-Consentimento- DentistasDownload