Executive branch presents legal framework for startups and innovative entrepreneurship

Complementary Law Project (PLP No. 249/2020)

The Executive Branch presented the Complementary Law Project (PLP No. 249/2020) to Congress, on 10/20/2020, which establishes the legal framework for startups and innovative entrepreneurship. The project indicates principles and guidelines; measures to stimulate investment in RD&I; possibilities of regulatory flexibility; rules for contracting innovative solutions by the public administration; and normative changes, particularly in Law No. 6,404 / 1976 on corporations, and in Complementary Law No. 123/2006 on micro and small businesses.

The goal, according to the explanatory memorandum, is “to support the development of innovative entrepreneurship and to leverage the ecosystem of startups in Brazil”, due to the potential of these companies to attract foreign investments, generate jobs, in addition to collaborating with digitization and benefit the economy and the environment. It is intended, therefore, to improve the business environment in the country through legal mechanisms that facilitate and encourage innovation developed by startups.

This is clear from the principles and guidelines explained in the draft of the project. Observing the needs to modernize the business environment, stimulate productivity and competitiveness and promote the internationalization of Brazilian companies, it is recognized that innovative entrepreneurship is one of the vectors of development, the importance of valuing legal security and contractual freedom, together with the decisive role of companies in bringing about innovation.

The proposal covers a definition of startup based on the time of operation and the type of operation. Thus, it will be considered a startup, a company (individual entrepreneur, EIRELI, business companies and simple companies) that is new or in operation, that is, with up to six years of enrollment in the CNPJ, annual gross revenue limited to R $ 16 million, whose operation supports primarily in the innovation of business models, products or services. In addition, it is necessary for the company to qualify for Inova Simples or declare in its constitutive act that its activities result in new products, services or processes or even gains in quality to those existing.

The fostering measures are related to permissions and incentives for startups to receive funds from third parties. In this way, we propose the alternative of providing capital through instruments in which the investor, whether natural or legal, does not integrate the social capital of the startup, allowing its participation in the deliberations in a consultative character and guaranteed that it will not be involved in a legal personality disregard incident; as well as the fulfillment of legal or contractual obligations for investment in RD&I with the provision of resources in startups through equity funds and equity investment funds.

The experimental regulatory environment concerns the authorization for public bodies with sectoral regulation powers to remove the incidence of standards. The purpose is to organize simplified conditions for the development of innovative business models, experimental technologies and testing of techniques, according to criteria established by such bodies in specific normative acts.

In order to foster the ecosystem of startups, the bill structures a special bidding modality, with subsidiary application of Law No. 8,666 / 1993. In this, it will be possible to restrict participation only to companies classified as startups and the scope is limited to indicating the problem to be solved and the results expected by the Public Administration. The proposals will be evaluated by a special committee made up of people with knowledge on the subject, guided by criteria, in addition to those defined in the notice, which evaluate the solution presented by the startup, depending on the potential resolution of the problem, its degree of development, maturity of the business, economic viability and comparison between its costs and benefits in relation to functionally equivalent options.

After the approval of the result of this special bidding modality, the execution of a Public Contract for Innovative Solution (CSPI) is stipulated, with mandatory clauses regarding goals, delivery of reports, risk matrix, intellectual property, among others, of term limited to 12 months, extendable only once, for a period of up to 12 months.

Once the contractual term has ended, the Public Administration is allowed to enter into a supply contract with the same contracted company, without further bidding, which is limited to 24 months, extendable for a further period of 24 months, with the object of product, process or solution resulting from the CSPI; the integration of the solution into the technological infrastructure or the work process of the public entity.

After the presentation of PLP No. 249/2020, the board of directors of the Chamber of Deputies assigned the priority procedure, determined that the project should be attached to PLP No. 146/2019, which deals with startups and measures to encourage the creation of these companies , which awaits the opinion of the rapporteur in the Special Committee.

By: Wilson Sales Belchior