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August/2018 | Published by: Mariana Ferraz Menescal

The evolution of guarantee insurance at Aneel

On August 22, 2018, we were present at the event “Aneel and Insurance Auction Guarantee – Challenges and Opportunities”, organized by ANSP, which was divided into 4 panels. The first panel was about Aneel and guarantee insurance, a topic that was presented by Romário de Oliveira Batista, executive auction manager at Aneel. The 2nd panel was about the responsibility of the insurance broker in a guarantee insurance policy, and the presentation was made by Edmur de Almeida, from Fenacor. The 3rd panel, on the other hand, was about guarantee insurance for Aneel – construction of the work or energy delivery, a topic addressed by Felipe Nakazone, from the Swiss Re subscription area. Finally, the 4th panel dealt with the counterpoint of the construction industry, from the perspective of André Dabus da Abdib.

At the event, several subjects of paramount importance for the insurance market were addressed. Aneel understands that there is an inadequacy of the guarantee insurance offered by the market, as it is treated as damage insurance and is subject to proof of losses in all cases. Despite this, from 2012 to 2017, 80% of guarantees in Aneel’s auctions were insurance.

Aneel mentioned the great difficulty of executing the guarantee insurance. Today, of 115 executions initiated by Aneel, none have been completed.

Despite the scenario portrayed above, Aneel reported the success obtained in the negotiations with Fenseg and Fenaber, which resulted in a new clause approved by Susep for bid guarantee policies. In the object of these policies, the indemnity is guaranteed, regardless of the proof of losses, of the amount of the fine applied as a result of non-signing of the main contract by the winning bidder. This new clause started to be used in Aneel auctions since April 2017.

Furthermore, in a consultation formulated in Official Letter 05/2018 – SEC / Aneel, of January 23, 2018, answered in Opinion SUSEP / Dicon / CGCom / Coset 07/2018, of January 28, 2018, it was decided that, for application of fine after due administrative process, it is not necessary to prove the insured’s damage or loss, in order to obtain compensation from the insurer in the event of default by the policyholder.

It was also emphasized that the hypotheses and criteria for applying a fine are being discussed internally at Aneel itself.

Regarding the procedure for executing the guarantee insurance, Aneel clarified that the insurer is only notified in case of non-payment by the grantee after due administrative process, with a guarantee of contradictory and ample defense for the grantee.

On the other hand, Aneel expressed its dissatisfaction with the obtaining of a judicial decision by the policyholder or insurer suspending the execution of the insurance in order to open a specific process for determining and quantifying the losses and damages caused to the public power, a strategy which, according to Aneel , is quite common.

Finally, it was reported that in 2017, Aneel started to conduct auction A-4 instead of A-3, as the deadlines for the execution and delivery of the projects were not feasible. Currently, Aneel works with the adoption of realistic deadlines in auctions, as its objective is always the full compliance with the contracts.

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