BCB Resolution No. 362 — Amending BCB Resolution No. 285 of January 19, 2023, Regarding the Constitution and Operation of Consortium Groups

BCB RESOLUTION NO. 362, OF DECEMBER 14, 2023

Amends BCB Resolution No. 285, of January 19, 2023, which provides for the constitution and operation of consortium groups.

The Collegiate Board of the Central Bank of Brazil, in a session held on December 14, 2023,

Based on Arts. 6, 7, 15, and 26 of Law No. 11,795, of October 8, 2008,

RESOLVES:

Art. 1. BCB Resolution No. 285, of January 19, 2023, shall enter into force with the following alterations:

"Art. 12. ...........................................................................................................

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Sole Paragraph. The value of the winning bid must be destined for the settlement or partial amortization of future installments, observed the form provided in the contract." (NR)

"Art. 22. ...........................................................................................................

I - coverage of eventual insufficiency in the period of resources of the common fund for:

a) realization of the drawings provided for in the respective ordinary general assembly;

b) compensation of the loss of purchasing power of the consortium group, as provided for in Art. 25-B, § 1, item II; and

c) compensation of the impact of eventual substitution of the good, bundle of goods, service, or bundle of services subject to the contract, as provided for in Art. 30, sole paragraph, item III;

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IV - additional drawings, by lottery, provided that the use of the reserve fund for the purposes provided for in items I to III is not compromised." (NR)

"Art. 25-A. The consortium administrator must charge or compensate for differences in the installment value when there are amounts collected less or more due to an alteration in the price of the good, bundle of goods, service, or bundle of services subject to the contract occurring between the date of issuance of the installment billing documents and the date of realization of the respective ordinary general assembly of the period.

Sole Paragraph. The value relative to the installment difference, converted into a percentage of the price of the good, bundle of goods, service, or bundle of services subject to the contract, must be charged or compensated until the second installment immediately following the date of its verification." (NR)

"Art. 25-B. The consortium administrator must restore the purchasing power of the consortium group resulting from financial loss occasioned by an increase in the price of the good, bundle of goods, service, or bundle of services that impacts the remaining balance of the common fund not used in the drawings of the period, adjusting it in proportion to the alteration that occurred.

§ 1. The value referring to the loss of purchasing power must be converted into a percentage of the price of the good, bundle of goods, service, or bundle of services, and covered, in the following order of preference, by:

I - value relative to earnings from financial application of resources of the common fund, late fees and interest retained, and rescission fine retained;

II - resource of the reserve fund, if constituted; and

III - pro-rata sharing among the active members of the group until the second installment immediately following the date of its verification.

§ 2. For the purposes of this article, the purchasing power of the consortium group to be restored refers only to the amount collected as common fund.

§ 3. In the case provided for in the caput, the administrator may charge an administration fee on the values referred to in items I and II of § 1.

§ 4. The amount paid by the member relative to the pro-rata sharing, established in item III of § 1, being an extraordinary charge, may not be used to amortize the percentage of the price of the good, bundle of goods, service, or bundle of services subject to the contract." (NR)

"Art. 30. In the event of substitution of the good, bundle of goods, service, or bundle of services subject to the contract, due to discontinuity in the production of the good or provision of the service or for other justified reasons, upon approval in an extraordinary general assembly, the following charging criteria must be applied:

I - the installments of the awarded members, future or overdue, must not undergo immediate alteration and will be adjusted only when there is an alteration in the price of the new good, bundle of goods, service, or bundle of services subject to the contract, in the same proportion;

II - the installments of the non-awarded members, future or overdue, must be adjusted based on the current price, on the date of the extraordinary general assembly, of the new good, bundle of goods, service, or bundle of services subject to the contract.

Sole Paragraph. For the purposes of item II of the caput:

I - the debtor balance relative to the common fund and other obligations must be recalculated, taking into consideration the percentage already amortized of the price of the good, bundle of goods, service, or bundle of services originally provided for in the contract and of the other obligations;

II - if on the date of the extraordinary general assembly the member has already paid a total amount equal to or greater than that of the new good, bundle of goods, service, or bundle of services subject to the contract, the debtor balance of the consortium share and other obligations will be considered settled, and the member must await the drawing by lottery for the receipt of the corresponding credit; and

III - if on the date of the extraordinary general assembly the member has already paid a total amount greater than that of the new good, bundle of goods, service, or bundle of services subject to the contract, the member will be refunded, upon award, of the amount collected in excess, which must be:

a) extracted from the common fund of the consortium group, if there is availability of resources after the realization of the other drawings of the period; and

b) added to the credit made available under item II." (NR)

"Art. 32. ...........................................................................................................

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II - fails to comply with the financial obligations provided for, under the terms of the contract, for three due dates; or

III - on the occasion of the last ordinary general assembly, is delinquent with the financial obligations provided for, under the terms of the contract, for up to two due dates.

Sole Paragraph. The exclusion of an awarded member who has already used the credit for the acquisition of the good, bundle of goods, service, or bundle of services is prohibited."(NR)

"Art. 32-A. Any rescission fine established in a consortium group participation contract due to the exclusion of a member:

I - if charged as a percentage value, will fall exclusively on the value of the partial credit to be returned to the excluded member;

II - if charged as a nominal value, may not be equal to or exceed the value of the partial credit of the excluded member;

III - may not be superior to the remaining value of the administration fee that would be received from the member if he remained active until the end of the group, when charged in favor of the administrator; and

IV - must be charged upon the award of the excluded member.

Sole Paragraph. The application of the fine provided for in the caput is:

I - optional in the cases described in items I and II of Art. 32, provided that they are provided for in the contract; and

II - prohibited in the case described in item III of Art. 32." (NR)

"Art. 33. The awarded member who is excluded maintains their award assured, and the following measures must be adopted:

I - making available to the member the partial credit in value corresponding to the percentage amortized of the updated value of the good, bundle of goods, service, or bundle of services subject to the contract, deducting the pending financial obligations with respect to the consortium group and the consortium administrator, including any fines provided for in the contract; and

II - directing to the common fund of the consortium group the difference between the original credit linked to the award and the partial credit calculated, as well as the earnings from the financial application on the original credit linked to the award incident between the date the credit was made available to the member and the date of their exclusion.

Sole Paragraph. In the event that the value referred to in item II of the caput is insufficient to cover the remaining partial value of the updated price of the corresponding good, bundle of goods, service, or bundle of services updated, the value of the difference resulting therefrom must be deducted from the partial credit made available to the excluded member." (NR)

"Art. 49. The consortium administrator must send to the active members, before the realization of the ordinary general assembly of the period, together with the installment billing document, the Individual Statement of the Member, filled with data relative to the immediately preceding assembly, containing, at minimum, the following information:

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VI - ...................................................................................................................

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e) difference in the installment value and pro-rata sharing for the restoration of the purchasing power of the consortium group, if applicable; and

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VII - price of the good, bundle of goods, service, or bundle of services or updated value of the credit subject to the contract, on the date of issuance of the installment billing document;

VIII - table containing the discrimination of payments made by the member referring, at minimum, to the period relative to the last three ordinary general assemblies, including advance payments as bid or administration fee, and respective percentages of credit amortization, of the total value concerning the administration fee and of the other amounts due; and

IX - discrimination of installments in arrears, if any, containing due dates and value, as well as the respective consequences of non-compliance with financial obligations, especially the characterization of the provision in Art. 32.

§ 1. The documents referred to in the caput must be sent by physical or electronic means according to the form and channel chosen by the member among the options made available by the consortium administrator.

§ 2. The information referred to in item VIII covering the period comprised between the beginning of the group and the date of consultation by the member must be made available to the member on the internet website of the consortium administrator." (NR)

"Art. 57. As a transition rule, consortium groups constituted before the date of entry into force of this Resolution remain governed by the rules in force until that date until their closure, except for the provisions in Arts. 14, 25-A, 25-B, 36, 44, 49, 51, and 53 to 55 of this Resolution, which must also be applied to groups in progress on that date." (NR)

"Art. 59. This Resolution enters into force on July 1, 2024." (NR)

Art. 2. The following are revoked:

I - Circular No. 3,244, of June 30, 2004; and

II - the following provisions of BCB Resolution No. 285, of 2023:

a) the sole paragraph of Art. 21;

b) Art. 25;

c) items I and II of the sole paragraph of Art. 33; and

d) the sole paragraph of Art. 49.

Art. 3. This Resolution enters into force:

I - on July 1, 2024, regarding Art. 2, item I; and

II - on the date of its publication, regarding the other provisions.

OTÁVIO RIBEIRO DAMASO
Director of Regulation