BCB Resolution No. 364 — Regulates contracting for the direct and indirect management of the country's international reserves

BCB RESOLUTION NO. 364, OF DECEMBER 19, 2023

Regulates contracting related to the direct and indirect management of the country's international reserves, including those for services connected or accessory to this activity, in compliance with the provisions of § 5 of art. 1 of Law No. 14,133, of April 1, 2021.

The Collegiate Board of the Central Bank of Brazil, in a session held on December 19, 2023, based on art. 11, items III, letter “a”, and V, letter “u”, of the Internal Regulations of the Central Bank of Brazil, annexed to BCB Resolution No. 340, of September 21, 2023, having in view the provisions of arts. 21, item VIII, and 37 of the Federal Constitution, art. 10, item VIII, of Law No. 4.595, of December 31, 1964, art. 1, § 5, of Law No. 14,133, of April 1, 2021, and Vote 194/2023–BCB, of December 19, 2023,

R E S O L V E:

CHAPTER I

PRELIMINARY PROVISIONS

Art. 1 This Resolution establishes the rules and procedures to be observed in contracting related to the direct and indirect management of the country's international reserves by the Central Bank of Brazil, including those for services connected or accessory to this activity.

Art. 2 The norms and procedures for bidding and contracting provided for in Law No. 14,133, of April 1, 2021, do not apply to contracting governed by this Resolution, ensuring compliance with the principles of legality, impersonality, morality, publicity, and efficiency established in the caput of art. 37 of the Federal Constitution, in compliance with the provisions of § 5 of art. 1 of that Law.

§ 1 Without prejudice to compliance with the rules and procedures established in this Resolution, acts practiced exclusively based on the principles referred to in the caput must be motivated, and the practical consequences of the decision within the scope of international reserve management must be considered.

§ 2 The rules and procedures established in this Resolution have as objectives, in particular:

I - ensure the selection of contractors and the realization of contracting that are capable of generating the most advantageous result regarding compliance with the guidelines of security, liquidity, and profitability of international reserve management;

II - ensure compliance with administrative morality and impersonal treatment in the selection and supervision of contractors, without prejudice to the requirements, qualifications, and restrictions technically justified as necessary to meet the guidelines of security, liquidity, and profitability of international reserve management;

III - avoid disadvantageous contracting or whose economic elements have significant and unjustifiable deviations from the values practiced in the international financial market under similar conditions;

IV - ensure compliance with moderate formalism and instrumentality of forms within the scope of procedures for selecting contractors and formalizing the corresponding contracts, without prejudice to the existence of administrative and accounting records necessary for transparency, internal and external control, and accountability; and

V - promote public objectives connected to the administration of international reserves, such as sustainability requirements, provided that, at the discretion of the Central Bank of Brazil, such measure does not occur to the detriment of the guidelines of security, liquidity, and profitability.

Art. 3 The procedures referred to in this Resolution will be conducted by the Department of International Reserves (Depin) as the Contracting Unit (CU), observing the provisions of § 1.

§ 1 Without prejudice to the provisions of the caput, due to the special nature of the service or good provided within the scope of reserve management, other departments may, at Depin's discretion, act as the CU.

§ 2 It is the responsibility of the CU, in case of technical doubts, to consult the following units, as appropriate:

I - Depin, when it is not the CU, regarding the following technical issues involving the management of international reserves:

a) operational aspects related to the direct or indirect management of international reserves;

b) publicity or confidentiality of contractual content; and

c) demands related to compliance with Law No. 12.527, of November 18, 2011 (Information Access Law – LAI);

II - the Department of Corporate Risks and Operational References (Deris), on matters related to the risks involved in contracting and contractual execution.

§ 3 Without prejudice to the provisions of art. 16, the CU must submit to the General Legal Counsel of the Central Bank (PGBC) any doubts regarding the legality of the contracting in light of the Brazilian legal system.

CHAPTER II

DEFINITIONS

Art. 4 For the purposes of applying this Resolution, consider:

I - direct management of international reserves: acts of administration practiced directly by Depin involving the negotiation, movement, and allocation of international reserves in different currencies, securities, derivative contracts, and other financial assets in the international market, including, but not limited to, gold and noble metallic commodities in any state and standard, including the celebration, when applicable, of any and all contracts or legal instruments relating to the services of negotiation, deposit, custody, and settlement of these assets, regardless of their nature;

II - indirect management of international reserves: acts of administration related to the allocation of a portion of the assets that make up international reserves, including regarding the custody of these assets, according to time periods, operational limits, and previously defined guidelines, for the exercise of professional management by different institutions with recognized experience in the international financial market, under the direct supervision of the Central Bank of Brazil, within the scope of an External Reserve Management Program (PGER);

III - contracting of connected or accessory goods and services: celebration of contracts for the supply of goods or for the provision of accessory, instrumental, or complementary services to the exercise of direct or indirect management of international reserves;

IV - parameters of security, liquidity, and profitability of international reserve management: criteria for the direct or indirect management of international reserves defined in a document approved by the Governance, Risks, and Controls Committee of the Central Bank of Brazil;

V - contracting of operations in the financial market: negotiation and celebration of operations in organized or unorganized stock or over-the-counter markets, abroad, according to local commercial practices and regulation, involving the negotiation of currencies, securities, and financial assets, including, but not limited to, gold and noble metallic commodities in any state and standard, and derivative contracts of any kind;

VI - international contracts: contracts celebrated by the Central Bank of Brazil with foreign companies, institutions, or professionals, and whose resulting obligations are constituted or executed abroad;

VII - complete arbitration clause: compromissory clause whose model has been approved by the PGBC and which contemplates the main legal and procedural aspects so that the arbitration procedure can begin without the need, in theory, for prior intervention of the Judiciary.

§ 1 The PGER aims for the continuous improvement of the direct management of international reserves, through the diversification of methods and strategies for managing these currencies and the acquisition of technical knowledge held by external managers, in particular, through accessory contractual obligations consisting of the realization of periodic training and the transfer of know-how by contractors.

§ 2 The maximum percentage limit of international reserves to be managed indirectly shall be 10% (ten percent) of the total reserves, and it may be exceptionally exceeded if necessary to meet minimum application requirements, observing, in all cases, the parameters of security, liquidity, and profitability of international reserve management.

§ 3 If the limit provided in § 2 is exceeded, efforts must be made, as soon as possible and at the time considered most opportune and advantageous for the Central Bank of Brazil, to return to the percentage of up to 10% (ten percent), through the termination or non-renewal of ongoing contracts or the reduction of the value managed under these contracts.

CHAPTER III

CONTRACTING OF OPERATIONS IN THE FINANCIAL MARKET

Art. 5 Depin is responsible for contracting operations directly in the international financial market involving currencies, securities, derivative contracts, and other financial assets that make up international reserves.

§ 1 The negotiation of the operations referred to in the caput seeks to conclude the contracting under the best economic conditions permitted by the corresponding market, considering the factual circumstances and information available to Depin at the time of its realization, always observing the parameters of security, liquidity, and profitability of international reserve management.

§ 2 The stages of negotiation and contracting referred to in § 1 may be evidenced by means of quotes and buy and sell orders registered in electronic messaging or negotiation platforms, brokerage notes, telephone recordings, confirmation messages sent between the parties, or other forms acceptable according to the commercial practices of the respective market and applicable legislation.

§ 3 Over-the-counter market operations will be carried out with eligible counterparties, according to criteria fixed by the Counterparty Selection Committee established within Depin.

§ 4 Whenever market operations involve credit risk, Deris will assess the risk involved in contracting and establish the operational exposure limit to credit risk of the respective counterparty.

Art. 6 The celebration of a master agreement or other types of contracts to regulate the general terms and conditions of the relationship with the counterparties referred to in § 3 of art. 5 is dispensed with in cases where, according to the legal analysis of the PGBC and technical assessment of Depin, the contractual instrument can be replaced by another simplified document, such as confirmation messages exchanged with counterparties, provided that its content is considered sufficient to govern the operations referred to in this Chapter, according to legal norms and commercial practices applicable to the corresponding market.

§ 1 Due to the dynamic nature of market conditions, Depin may formalize the contractual instrument referred to in the caput after the realization of operations with the corresponding counterparty, provided that, in any case, the parameters of security, liquidity, and profitability of international reserve management are observed.

§ 2 The negotiation and celebration of the contractual instrument, as well as the supervision of contractual execution, will observe, insofar as applicable, the provisions of Sections IV and V of Chapter IV of this Resolution.

CHAPTER IV

CONTRACTING OF CONNECTED OR ACCESSORY GOODS AND SERVICES

Section I

General Provisions

Art. 7 The contracting for the supply of goods or services connected or accessory to the management of international reserves includes, among others, the following contractual objects necessary for the good administration of the country's foreign exchange assets abroad:

I - current account services in foreign currencies abroad;

II - custody services for financial assets and securities abroad;

III - clearing services for operations with foreign currencies, financial assets, and securities in organized markets abroad;

IV - services provided by a clearing institution abroad, including the supply of systems or electronic platforms for maintaining accounts and sending communications and settlement instructions;

V - supply of financial messaging systems;

VI - data communication service and access to the agency news network about the financial market, with information and data for monitoring or monitoring the economic conditions of financial assets and relevant markets abroad, including systems and electronic platforms related to these services;

VII - supply of an electronic platform or system for sending operation confirmations and payment instructions;

VIII - supply of electronic platforms or systems for financial market negotiation and monitoring;

IX - services for indirect management of international reserves within the scope of the PGER;

X - securities lending services;

XI - brokerage services for financial operations (brokerage agreement);

XII - judicial or extrajudicial representation services, legal consulting, and advisory services abroad;

XIII - onerous adherence of the Central Bank of Brazil to associations of market agents, international bodies, and other foreign non-profit entities whose purposes or services are relevant and useful for the management of international reserves; and

XIV - acquisition of other goods or services abroad, related, even if in an accessory or connected manner, to the direct and indirect management of international reserves.

Art. 8 Contracting related to the supply of goods or services connected or accessory to the management of international reserves will be formalized with the opening of an administrative process, preferably in electronic format, accompanied by documents and information demonstrating compliance, at least, with the following stages:

I - planning;

II - selection of the contractor;

III - formalization of the contract; and

IV - management and supervision.

Section II

On Planning

Art. 9 The planning stage comprises the formalization of the following procedures:

I - preparation of a document describing the demand for contracting goods or services connected or accessory to the management of international reserves, which must convey, clearly and objectively:

a) the justification for the need for contracting for the management of international reserves;

b) the object to be contracted, including the quantities to be supplied and the duration of the contract, if applicable; and

c) the adequacy of the chosen solution among the available alternatives in the market to meet the public interest;

II - raising an estimate of the value of the contracting, when this can already be obtained in this phase, accompanied by the documents supporting it or the parameters used for the respective calculations;

III - assessment of the risks involved in contracting and execution of the contractual object, consulting Deris, when applicable; and

IV - conclusive positioning of the CU regarding the feasibility and reasonableness of contracting the good or service connected or accessory to the management of international reserves.

Section III

On Selection of the Contractor

Art. 10. After the planning of the contracting is concluded, the CU will conduct the selection stage of the contractor, through the formalization of the following procedures:

I - establishment of objective and non-discriminatory criteria for selecting the contractor, except for technically justified requirements to achieve security and efficiency in the management of international reserves;

II - adoption of collective call or individual collection, at the CU's discretion, of price and condition proposals offered for the supply of the object by companies, institutions, or professionals who possess technical capacity and honest and recognized reputation in the market in which they operate;

III - evaluation of proposals and objective comparison, as far as possible, between the total costs and conditions offered by the proposers of the goods and services;

IV - evaluation of the quality of the good or service to be supplied in relation to existing technical standards and best practices in financial resource management, observing the parameters of security, liquidity, and profitability of international reserve management; and

V - decision that presents, clearly, objectively, coherently, and with justification, the factual reasons for the choice of the proposer to be contracted and the justification for the reasonableness of the price and other conditions of the contracting, observing the criteria established in items I and IV.

Sole Paragraph. In contracting where it is not possible to objectively compare the costs and technical conditions offered by more than one proposer, including in the cases referred to in art. 11, the advantage of contracting and the reasonableness of the price and other conditions offered in the proposal may be assessed by comparing them with the prices and conditions practiced in the market by the proposer to be contracted, either in previous contracting with the Central Bank of Brazil itself or with third parties, as well as by other equally honest means that allow evidence of this reasonableness.

Art. 11. Compliance with the procedures referred to in items II and III of art. 10 may be dispensed with when competition is unfeasible or when the selection process among several proposers is not the best instrument to satisfy the public interest within the scope of international reserve management, especially in the following cases:

I - acquisition of goods or services offered by an exclusive supplier;

II - contracting of specialized technical services of predominantly intellectual nature provided by professionals or companies of notorious specialization; or

III - situations in which the public interest within the scope of international reserve management recommends the contracting of a solution or contractual object unique and integrated by the joint supply of goods and connected or similar services through a specific supplier or service provider, due to the following factors:

a) reduction of administrative costs resulting from the unified management and supervision of contractual execution or the appropriation of economic benefits related to economies of scale or scope of the contractor;

b) capacity to ensure efficient management of the processes involved in contractual execution or to mitigate risks related to non-execution or irregular execution of the entire solution or intended contractual object; and

c) technical standardization process, duly justified by the CU, that leads to the need to choose a single supplier.

Art. 12. Without prejudice to the provisions of art. 11, the CU may, through a reasoned decision in the electronic contracting process, remove the need to observe any specific stage, procedure, or requirement, except for the provisions of item V of art. 10, in situations where foreign norm or commercial practice applicable to the contracting implies disproportionate obstacles or impossibility of compliance with the provisions of this Chapter.

Sole Paragraph. The decision referred to in the caput must be preceded by prior consultation to Depin, Deris, and PGBC, as provided in §§ 2 and 3 of art. 3, and does not dispense with compliance with the principles of art. 37, caput, of the Federal Constitution.

Section IV

On Formalization of the Contract

Art. 13. The contracting referred to in this Chapter will be formalized through the signing of a written contract by the Central Bank of Brazil with the selected good supplier or service provider.

Sole Paragraph. In cases where the CU, even after effective and proven negotiation, does not succeed in formalizing the contractual instrument, such instrument may be exceptionally replaced by another capable and honest negotiable document, according to technical assessment of Depin and legal analysis of PGBC, which serves to regulate the contractual relationship between the parties in light of legal norms and commercial practices applicable.

Art. 14. In international contracts celebrated by the Central Bank of Brazil, the CU is allowed, with a view to ensuring efficient and secure management of international reserves:

I - observe the peculiarities of foreign legislation and regulation, as well as commercial practices, applicable to the contract or market in which contracting is sought;

II - dispose of certain prerogatives or exorbitant treatments to private contractual law, except for sovereign attributes related to immunity from jurisdiction and execution conferred on central banks and their assets by Public International Law or foreign law, observing the provisions of § 1;

III - celebrate an adhesion contract made available by the contractor, in cases where the CU is not able to influence the content of clauses through effective and proven negotiation, provided that the need for the contractual object for the management of international reserves is demonstrated and that such measure is indispensable for formalizing the contracting;

IV - sign contracts whose term of validity exceeds the fiscal year or that have an indefinite term, observing the practices adopted in the respective market and the management and supervision procedures provided in Section V of this Chapter;

V - make advance payment, whenever such measure provides resource savings or is a condition for the execution of the object;

VI - adopt a confidentiality clause regarding the content and existence of the contract, except for the need for publicity due to compliance with legal provision, judicial order, or access to the contract by control bodies;

VII - adopt, after prior hearing of the PGBC, a clause electing the foreign law applicable to the contract, provided that the applicable foreign norms do not offend national sovereignty, public order, and good morals for the production of efficacy in the Country; and

VIII - preferably adopt the model of complete arbitration clause that establishes arbitration as an extrajudicial means of dispute resolution, observing the need for the choice of the seat of the arbitration procedure to be established in a location whose jurisdiction has a notorious reputation for recognizing the validity of the compromissory clause and the efficacy of arbitral awards.

§ 1 Except for exceptional situations previously examined by the PGBC, the CU must not agree, even implicitly, in a contract or another instrument replacing it, to the waiver of immunity from jurisdiction and execution to which the Central Bank of Brazil is entitled.

§ 2 Contracts with a determined term of validity may be successively extended or re-signed with the same contractor, provided that the CU justifies, in a reasoned manner, that the conditions offered by it remain advantageous for the efficient and secure management of international reserves, allowing for the reopening of negotiation with the contractor or contractual extinction at the end of the term.

Art. 15.
Contractual clauses must seek to incorporate, to the extent compatible with the respective contractual object, through effective and proven negotiation:

I - the technical and business requirements established for the procurement;

II - the description of the contractual object and its characteristics;

III - the rights and obligations of the parties, with respective deadlines and methods of compliance, and, where applicable, the contractual sanctions applicable in case of default;

IV - the currency of payment, the value of the procurement, the payment conditions, and, where applicable, the conditions for revision or readjustment of values;

V - the guarantees offered by the parties and the mechanisms for offsetting reciprocal credits, if admitted in the contract;

VI - the grounds for contract termination;

VII - the term, whether determined or indefinite, and, where applicable, the possibility of successive extension;

VIII - the legislation applicable to the contract;

IX - the complete arbitration clause, which should contemplate, as far as possible, the choice of legislation and language applicable to the arbitration, the seat of the arbitral proceedings, the type of arbitration, whether institutional or ad hoc, as well as the applicable rules or procedure;

X - the clause increasing the value paid in case of assumption of economic responsibility for values withheld as withholding tax at source; and

XI - where applicable, the choice of forum in the competent foreign jurisdiction to resolve any conflicts arising from the contract.

§ 1º The nomenclature used and the standard of formalization of the contract and its clauses may be adapted to the applicable foreign legislation or to the commercial practices adopted in the respective market, observing the provisions of the sole paragraph of Art. 17.

§ 2º The negotiation of the content of contractual clauses must seek to observe the principle of contractual balance regarding the obligations of the parties, except for the UC's technical discretion to evaluate negotiation strategies, the public interest of the procurement, and the practical consequences of its decision regarding the efficient and secure management of international reserves.

Art. 16.
Contract drafts must be submitted to prior analysis by the PGBC for a legal opinion, observing the following:

I - the legal opinion shall not address issues of a technical, non-legal nature, which involve the judgment of convenience and opportunity to be exercised by the UC regarding the management of international reserves;

II - the legal opinion may, exceptionally, be waived, in accordance with a norm issued by the Attorney General, in cases of procurements or matters regarding which there have been repeated legal opinions on their legality;

III - without prejudice to the provisions of item II, reference opinions approved by the PGBC may be adopted to support the procurement records in situations of a repetitive nature; and

IV - the provisions in items I, II, and III do not prevent consultations on the legal aspects involved in a specific issue in case of doubts by the UC.

§ 1º The provisions in the items of the main text do not prejudice the competences of the PGBC established in the Internal Regulations of the Central Bank of Brazil regarding international contracts.

§ 2º Whenever foreign legislation and regulation or local commercial practices are invoked as motivation for the content of certain clauses or for the production of certain legal effects in the contract, the UC must consult the lawyer or law firm qualified to provide legal consultancy in foreign law to the Central Bank of Brazil, except for matters on which there is already consolidated legal understanding in precedents of the PGBC or in legal opinions issued by lawyers or firms contracted by the Central Bank of Brazil to provide it with consultancy in foreign law.

Art. 17.
A summary extract with brief information about the procurements covered by this Resolution shall be published on the website of the Central Bank of Brazil, without prejudice to the preservation of the confidentiality necessary to safeguard the investment strategies of the country's international reserves, in accordance with Art. 2, main text, of Complementary Law No. 105, of January 10, 2001, as well as the observance of other legal grounds for confidentiality.

Sole paragraph. It shall be up to the UC, observing the provisions of Art. 3, § 2, item I, letter "b", to evaluate, in a reasoned manner, which data should be withheld or disclosed with a time lag relative to the procurement period, so as not to reveal the investment strategies of the international reserves or to safeguard other legal grounds for confidentiality.

Art. 18.
The contracts covered by this Chapter may be amended, with due justification, observing the corresponding contractual provisions and the provisions of this Section and Section V of this Chapter.

Section V

Of management and oversight

Art. 19.
It is up to the UC to exercise the management of the contracts entered into, being responsible for monitoring and overseeing contractual execution, especially with regard to:

I - the analysis and certification regarding the delivery of goods or the fulfillment of services that make up the contractual object;

II - the recording of occurrences related to the quality and perfect execution of the contract, with the adoption of necessary measures to clarify the facts, correct possible flaws, and, if applicable, exercise contractual measures provided for in the contract;

III - the continuous evaluation of the need for the procurement, as well as the determination, with reasonable frequency, of the continued fulfillment of the conditions that gave rise to the procurement, with the adoption of necessary measures to exercise the applicable contractual measures; and

IV - the statement on any incidents and possible claims by the contractor.

Sole paragraph. The UC may designate a civil servant or a team to exercise the contract manager activities indicated in this article.

Art. 20.
Whenever the contractor raises the price, remuneration, or any financial costs related to the contract, the UC or the manager designated by it must evaluate the reasonableness of the request or the measure adopted by the contractor in light of the contractual provisions and the corresponding budget allocation before submitting the issue to the deliberation of the competent authority to decide on the matter.

Sole paragraph. If there is an express provision for predetermined readjustments in the contract, the UC or the manager designated by it may decide directly regarding the request or the measure adopted by the contractor, without prejudice to the adoption of any necessary budgetary measures.

Art. 21.
If modifications of a technical, legal, or operational nature in the contract are requested by the contractor, the UC must analyze the request in advance, stating its position in a reasoned manner regarding its reasonableness, convenience, and risks relative to the management of international reserves.

Sole paragraph. If the UC concludes that the requested contractual modification is pertinent, the provisions of Art. 18 shall be observed.

CHAPTER V

FINAL PROVISIONS

Art. 22.
The contracts, as well as the records of the acts and procedures related to the procurements covered by this Resolution, shall be available for access by control or audit bodies, in order for them to exercise their legal duties, observing the commitment to preserve the legal grounds for confidentiality, especially the confidentiality referred to in Art. 2, main text, of Complementary Law No. 105, of 2001, regarding information that reveals the investment strategies of the international reserves.

Sole paragraph. Requests for information access filed based on the LAI shall be attended to by the Depin, respecting the legal grounds for confidentiality referred to in the main text.

Art. 23.
It is up to the UC to verify the existence of budgetary resource provisions in the Budget of Revenues and Charges of the Monetary Authority Operations (OAM) or, where applicable, in the General Budget of the Union (OGU), for the execution of expenses related to the procurement.

Art. 24.
All stages of the procurement processes must be duly recorded in an electronic process.

Sole paragraph. The eventual lack of formalization or the occurrence of irregularity in the observance of any stage of the procurement does not prejudice the accounting recording of the expense and the other pertinent records in the electronic process files, for purposes of control and accountability.

Art. 25.
This Resolution does not apply to the negotiation and contracting of operations carried out directly by the Depin in the Brazilian foreign exchange market, for the purpose of implementing the country's exchange rate policy, based on the competence provided in Art. 11, item III, of Law No. 4.595, of December 31, 1964, which are regulated by specific norms.

Art. 26.
In the absence of specific rules or procedures provided for in this Resolution to regulate any aspect of the procurement or the contract, the principles of the main text of Art. 37 of the Federal Constitution shall be applied directly, and subsidiarily, the provisions of Laws Nos. 9.784, of January 29, 1999, 13.105, of March 16, 2015, 10.406, of January 10, 2002, and Decree-Law No. 4.657, of September 4, 1942, to the extent applicable, without prejudice to the observance of foreign legislation and commercial practices, if applicable.

Art. 27.
Procurement processes whose electronic files were initiated after the entry into force of this Resolution shall be governed by its provisions.

Sole paragraph. Contracts entered into and procurement processes already initiated prior to the entry into force of this Resolution remain governed directly and exclusively by the principles of the main text of Art. 37 of the Constitution, without prejudice to the subsidiary application of this Resolution, at the discretion of the Depin.

Art. 28.
This Resolution enters into force on January 2, 2024.

GABRIEL MURICCA GALÍPOLO DIOGO ABRY GUILLEN Director of Monetary Policy Director of International Affairs and of Corporate Risk Management (substitute)

CAROLINA DE ASSIS BARROS
Director of Administration