At an event dedicated to Corporate Integrity Day, the CGU approved several clarifications aimed at standardizing the understanding of administrative liability of legal entities for corruption offenses.
Among other things, the CGU noted that:
- the concept of “undue advantage,” as provided by the Anti-Corruption Law (Law No. 12,846 of August 1, 2013 – the “Clean Company Act”), includes goods, services, or benefits of any kind, regardless of whether they have economic value, and may include advantages of a material, immaterial, moral, political, or sexual nature;
- to hold a legal entity liable, it is not necessary to prove that it had a specific intent to induce a public official to perform, omit, or delay an official act, nor that the corrupt public official actually took effective action in favor of the legal entity – it is sufficient that the unlawful acts were committed in the interest of, or for the benefit of, the company;
- the fact that the bribe was initially extorted by the public official does not exempt the company that offered or provided the undue advantage from liability.
At the same event, the CGU presented the “Guide for Identifying and Quantifying Undue Advantages” (Guia de Identificação e Quantificação da Vantagem Auferida) – a methodological document summarizing methodologies, parameters, and practical examples for measuring the economic benefits companies obtain through unlawful, including corrupt, acts.
In particular, according to the Guide, undue advantage/benefit can be measured as:
- revenue obtained from administrative contracts, minus only directly attributable and duly substantiated legal costs (e.g., raw materials, direct labor costs);
- expenses unlawfully avoided, such as fines or taxes that the company would have had to pay if it had not committed the offense;
- additional profit obtained through illegal benefits in public or regulated markets.
Where reliable information is unavailable, the Guide allows the use of proxy data, such as the size of the bribe as a minimum benchmark of the benefit obtained, average industry profitability or margins of similar companies, or data on capital, contracts, and number of employees where financial statements are absent.
The document also emphasizes the need to distinguish between vantagem auferida (advantage obtained) and dano ao erário (damage to the public treasury) so as not to recover the same amount twice. For example, if a company unlawfully avoided paying a tax, the amount of that tax simultaneously constitutes both an advantage for the company and damage to the state – in such cases, it should only be recovered once.
The Guide also includes nine case studies with calculations applied to different scenarios such as fraudulent contracts, improper tax benefits, and regulatory concessions. For example, if a contract was signed but the work was never performed, the entire contract value is deemed an advantage (case of company Sigma); if fake documents were used to obtain a contract that was subsequently performed, the calculation considers actual income minus direct lawful expenses (case of company Ômicron).
In addition, the CGU announced the publication of Regulatory Ordinance SE/CGU No. 226 of September 9, 2025, clarifying the implementation of Decree No. 12,304/2024 of December 9, 2024, which regulates the adoption of compliance programs in organizations participating in major public procurements (currently defined as procurements with contract values starting at 251 million BRL, about $47 million). The ordinance details procedures and methodology for assessing compliance programs, defining evaluation parameters, a list of minimum requirements, and verification methodology, including the use of the electronic System for the Evaluation and Monitoring of Integrity Programs – SAMPI).
According to the document, companies must complete special forms in SAMPI – the company profile form (formulário de perfil) and the compliance form (formulário de conformidade). The company profile form requires general information about the company (types of activities, structure, interaction with the public administration, etc.). The compliance form, included in Annex II of the Regulatory Ordinance, contains 105 questions about specific anti-corruption measures in place within the organization; each question has a category and a weight in the overall assessment.
For a compliance program to be deemed implemented, it must fully comply with the minimum set of mandatory elements (these questions are categorized as QN1) and achieve at least 70% completion across other categories (QN2–QN5). The evaluation based on the data submitted through SAMPI will be conducted directly by the CGU.
