TCU Establishes New Rules For Consensual Dispute Resolution Mechanisms

At a plenary session held on November, 5 2025, Brazil's Federal Court of Accounts (TCU) approved amendments to Normative Instruction No. 91/2022 (IN 91/2022), which governs the procedures for consensual dispute resolution and conflict prevention within the federal public administration.

IN 91/2022 established a formal process for handling Requests for Consensual Resolution, defining the mandate of the Secretariat for Consensual Resolution and Conflict Prevention (SecexConsenso), creating the Consensual Resolution Commission (CSC), and allowing the Plenary to deliberate on settlement proposals built jointly by the involved parties. The regulation also established procedural rules for consensual solutions, including standing requirements, admissibility criteria, and the formalization of settlement terms.

Below are the main changes introduced by Normative Instruction No. 101/2025.

1. Standing to Submit Requests for Consensual Resolution

Previously limited to authorities listed in the TCU's Internal Rules—such as the President of the Republic, Presidents of the National Congress, Chamber of Deputies, and Supreme Court; heads of regulatory agencies; and TCU case rapporteurs—the list of parties with standing now also includes the chief executives of state-owned enterprises.

2. Minimum Content Requirements

Normative Instruction No. 101/2025 introduces new mandatory elements that must accompany requests submitted to the TCU, reinforcing the need for technical and legal substantiation of the proposals.

Notably, when the request includes a settlement proposal, it must contain a reasoned justification demonstrating the legal soundness and advantages of the proposed solution.

In cases involving proposed investments in works, the request must also include:
(i) technical justification for each work, including alignment with sectoral planning and objective cost-benefit criteria; (ii) engineering designs and budgets referenced to official cost databases or market prices; and (iii) scenario analyses demonstrating the correlation among investments, contract term, and tariff impacts.

3. Social Participation

Normative Instruction No. 101/2025 introduces formal mechanisms for public participation, both prior to admissibility review and throughout the CSC's work.

Requests must include a report on public participation or consultation with potentially affected third parties whenever the matter involves public service provision or may affect third-party rights.

During the Commission's work, SecexConsenso may consult experts or civil society representatives and conduct reference panels. A public consultation or panel will be mandatory whenever the consensual solution involves a public service provision, or when it may affect the rights of third parties, economic agents, or users.

4. Transparency and Publicity

The revised wording states that the initial request for consensual resolution will be public. A summary of the request will be published on a dedicated page on the TCU's website, enabling third parties to submit information relevant to resolving the dispute. Confidential information must be submitted in a separate document.

5. Grounds for Non-Admissibility

Previously, IN 91/2022 allowed non-admissibility only when the TCU had already issued a decision on the same matter. The new instruction expands these grounds to include cases involving preparatory acts subject to the federal administration's discretionary authority in implementing public policies, or internal acts that do not involve disputes between the government and private parties.

6. Revision of Rapporteur Review and Role of the President of the TCU

Previously, if the matter under dispute was already part of a case pending before the TCU, the request would be forwarded to the rapporteur, who could ratify or reject its admissibility. If not ratified, the consensual resolution process would be closed.

Normative Instruction No. 101/2025 changes this rule. If the rapporteur declines to ratify admissibility, the President of the TCU may overturn the decision or submit it to Plenary review, allowing the request to continue under analysis.

7. Procedural Aspects

The new instruction maintains the existing procedural flow, but provides greater clarity regarding stages and deadlines. The process continues to include the submission of party statements, review by technical units, analysis by the Public Prosecutor's Office at the TCU, and final Plenary deliberation.

Before being submitted to the Plenary, the proposed consensual solution must be sent to relevant federal agencies, entities, and private parties for technical and legal opinions within fifteen days.

After these submissions, the deadlines are (i) five days for the specialized audit unit to issue its analysis, and (ii) 10 days for SecexConsenso to consolidate submissions and issue its final opinion.

8. Criteria for TCU Review

Normative Instruction No. 101/2025 defines the criteria for evaluating consensual proposals. The review will focus on: (i) legal soundness; (ii) advantages compared to the best alternative in a no-agreement scenario, including analysis of litigation or arbitration risks, likelihood of success, and costs and benefits associated with available countermeasures; and (iii) adequacy and sufficiency of mechanisms to mitigate moral and systemic risks, including safeguards against opportunistic behavior.

9. Appeals

The new instruction expressly prohibits appeals against decisions issued within Requests for Consensual Resolution due to their dialogical nature. The sole exception is the filing of motions for clarification (embargos de declaração) to address obscurity, omission, or contradiction in changes proposed by the Plenary.

10. Special Accounts Proceedings (Tomada de Contas Especial)

Normative Instruction No. 101/2025 authorizes the TCU to recommend the use of consensual solutions in special accounts proceedings — administrative procedures established to assess liability for damages to the public administration, quantify losses, and identify responsible parties — when such an approach is feasible and meets specific requirements.

This may apply in cases involving partial non-performance or performance lacking functionality, provided that resumption of the object is possible and there is no evidence of bad faith or serious irregularity. Negotiation of the form or conditions for satisfying financial liabilities may also be allowed, subject to specific rules to be issued by the TCU. Such recommendations will be formalized within the special accounts case files.

11. Entry into Force and Application

Normative Instruction No. 101/2025 entered into force on the date of its publication. Its provisions apply immediately to ongoing proceedings, without affecting procedural acts already performed under the previous instruction. New requirements will not apply to stages already initiated or completed, if doing so would harm case progress or impose excessive burdens on the parties.

The changes result from a collaborative process led by the TCU, involving workshops and consultations organized by SecexConsenso with public agencies, economic agents, and civil society representatives.

According to the TCU, the amendments reflect lessons learned from earlier consensual resolution cases reviewed by the Plenary, and aim to address challenges such as the need for greater transparency, mitigation of ethical and systemic risks, prevention of opportunistic behavior, and mechanisms for verifying investment costs introduced by consensual solutions.

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