If you are from the public sector and are interested in hiring the Modal Institute to develop a project in your area, you can follow the following path (or look directly for us to build a new path):
The hiring of the Modal Institute by the public sector goes through the following stages:
- Project Scope Definition: This is to clearly delineate what is expected as a result of the project, including what will be executed and what will not be executed.
- Definition of the term of validity: establishes the expected period for the execution of the project, until the delivery of the last product and the final evaluation. In some cases, additional time should be considered for completion of the technical report.
- Cost negotiation: calculation of the project value, considering the costs of the activities of science, technology, and innovation (researchers, equipment, eventual infrastructure, travel, etc.), operating costs and applicable taxes and fees.
- Definition of the main deliverables: clarifies what is expected in terms of products delivered (usually, technical reports and/or prototypes, since Modal Institute respects the market space.
- Elaboration of the work plan: the work plan is the instrumental formalization – that is, the document – that consolidates the initial planning of the project, including the object, the term, the value, the step by step for execution and other information relevant.
- Contracting for unenforceability: for being characterized as an Institution of Science, Technology, and Innovation, the Modal Institute can be hired for non-compliance, that is, exemption from bidding. The legal basis for this is the Science, Technology and Innovation Framework (Law nº 13.243 / 2016).
Brazilian Law # 13.243/2016 and the legal basis for hiring
Guided by Constitutional Amendment 85/2015, Law # 13,243/2016 established the Legal Framework for Science, Technology, and Innovation that updated Brazilian legislation with the objective of boosting the country’s growth. In order to reduce bureaucracy and facilitate scientific and technological research activities, several laws have been amended, among them: the biddings law (8,666/1993) and the Differentiated Regime of Contracting Law (12,462/2011).
The Framework for Science, Technology, and Innovation, in its art. 6º, XX, characterized “products for research and development – goods, inputs, services, and works necessary for scientific and technological research activity, technological development or technological innovation, broken down into research project approved by the contracting institution.” This characterization, therefore, perfectly covers the activities of the Modal Institute.
In order to promote scientific-technological research, Law 8.666 / 1993 was amended to allow the direct contracting, without bidding, of the products for research and development considered in the previous item:
Law 8,666 / 93. Art. 24. The bidding is not required: XXI – for the acquisition or contracting of a product for research and development, limited, in the case of works and engineering services, to 20% (twenty percent) of the value referred to in letter b of item I of the caput of art. 23.
It is worth noting that, as a general rule, the hypothesis of exemption from bidding for the acquisition of goods or services that represent a PPD (product for research and development) is not linked to any limit value, respecting the parameters of art. 26 of Law 8666/93.
As provided for in the cases of invitation, tender, supply of goods for prompt delivery and auction (Article 32, § 2, Law No. 8.666 / 93), § 7 was added to art. 32 of the bidding law to dispose of the waiver of the qualification documents in the contracting of research and development product – PPD when destined for prompt delivery or when the value of the object does not exceed R $ 80,000.00 (eighty thousand reais):
Law 8,666 / 93. Art. 32. § 7 The documentation referred to in arts. 28 and 31 and this article may be waived, in terms of regulation, in whole or in part, for the contracting of product for research and development, provided that for prompt delivery or up to the amount provided in item a of II Art. 23.
It should be noted that such release may occur in relation to specific documents or even in relation to all of them, in the form that will be provided in a possible decree that will regulate the matter.
By means of amendment of Law 10,973 / 2004, the published text establishes other hypotheses in which the constitutional duty to bid, provided in inc. XXI of art. 37 of the Federal Constitution, may be dismissed:
Art. 20. Public administration bodies and entities, in matters of public interest, may directly contract ICT, non-profit private entities or companies, alone or in consortiums, focused on research activities and recognized technological qualification in the sector , aiming to carry out research, development and innovation activities involving technological risk, to solve a specific technical problem or obtain an innovative product, service or process.
Questions and Answers
The following questions and answers identify and clarify the main practical aspects of the Science, Technology, and Innovation Framework:
Who can use this type of waiver?
The bodies and entities of the Public Administration, in matters of public interest.
Who can be hired directly?
Scientific, technological and innovation institutions (ICTs); Entities of private non-profit law; Companies (alone or in a consortium) focused on research activities and recognized technological qualification in the sector.
It is worth mentioning that the Modal Institute was conceived precisely on the basis of the definition of ICT foreseen in the Framework of Science, Technology, and Innovation, as such.
What could be the subject of this direct contracting?
Research, development and innovation activities involving technological risk, to solve a specific technical problem or obtain an innovative product, service or process.
Some of the content presented was strongly based on an article published by Dawison Barcelos on the Jusbrasil Blog (https://olicitante.jusbrasil.com.br/artigos/295994702/lei-13243-16-e-reus-reflexos-na-lei-de -licitacoes-and-no-rdc)
Private organizations can hire the Modal Institute directly, following their own internal guidelines. However, in the same way as in the public sector, Instituto Modal works through research projects in science, technology, and innovation, requiring the prior negotiation of a work plan. This process happens as follows:
- The organization interested in developing a Science, Technology or Innovation project contacts the Modal Institute.
- The Modal Institute develops, together with the organization, a work plan that meets the needs raised and negotiates the necessary resources to carry out the project. It should be remembered that, since it is a non-profit institution, the Modal Institute does not incorporate financial margin in the projects – the negotiated values are exclusively destined to the expenses necessary to carry out the works and the operational costs.
- Once the work plan is approved, a contract is signed between Instituto Modal and the organization. The works are started immediately after the signature of the contract.
- Once the project is completed, the Modal Institute promotes the evaluation of the work in conjunction with the organization.
In the case of projects and services with private organizations, it is possible to increase flexibility in the options for contracting and negotiating values and forms of remuneration.