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Construction 2015: In-house Q&A

Maria Roseli Candido Costa, legal manager of Tomé Engenharia SA, spoke with Who’s Who Legal about her role within Tomé, recent projects and developments, the current state of the Brazilian construction industry as well as the Tomé Group’s in-house legal function.

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Since its establishment in 1973, the Tomé Group has expanded to become a major presence throughout the Brazilian market and abroad for large-scale projects in the rigging, port, transportation, engineering, energy and electromechanical fields. The group employs approximately 4,000 employees across its four companies, each of which has a particular industry focus and broad client portfolio. Across all of its operating sectors, the Tomé Group focuses on utilising industry-specific experience and technology to deliver project solutions to its customers. The company also places particular emphasis on social environmental responsibility and looks to provide its services on the basis of a sustainable and socially responsive approach.

Maria Roseli Candido Costa is the legal manager of Tomé Engenharia SA, the group’s company focusing on oil and gas engineering projects. Costa manages all four legal departments within each of the group’s companies and has a diverse practice encompassing the preparation and negotiation of domestic and international contracts for infrastructure engineering, the development and maintenance of internal management procedures and the analysis of partnerships for engineering, procurement and construction (EPC) contracts. She has extensive experience of the Brazilian in-house market in a number of sectors, having previously handled complex legal matters as a legal consultant for Telefónica and Algar Telecom.

Describe a typical day in your role as legal manager at Tomé Engenharia SA.

My work ranges from internal arrangements to external negotiations. My day-to-day tasks cover a wide range of areas, including analysis and discussion of partnerships for EPC contracts; reducing risks and costs; scrutiny of all construction contracts related to subcontractors; negotiating contractual clauses for financial operations; elaboration of documentation to obtain permits for installation and operation of engineering work; preparation of all corporate acts in the group; shareholders meetings’ and board meetings; opening subsidiaries; incorporation of consortiums and specific purpose partnerships (SPPs); coordination of due diligence for acquisition of participation in companies; tax planning prior to presenting commercial proposals to participate in bidding processes; and the coordination of external law firms, mainly in the taxation area.

Brazil’s role as host nation of the 2014 World Cup was instrumental in its continuing economic development to meet infrastructure needs. With Rio 2016 also approaching, would you say that the domestic construction industry has continued to flourish? What kind of infrastructure projects has Grupo Tomé been involved in over the past year?

Considering the current economic situation, I believe 2015 will be a rough year for the domestic construction industry, despite the upcoming events. On the other hand, the present scenario may bring good opportunities for foreign construction companies which may be interested in entering Brazil, since the ongoing projects will be in need of extra impetus to be concluded. Tomé is not involved with infrastructure projects related to the games as it is specialised in oil and gas projects.

A major aspect of your role is managing the legal departments of the four companies within Tomé. What challenges does this present and what is the extent of the interaction between each of the legal departments?

The main challenge is the management of the contracts in all aspects. People who work on site are not always as concerned with the wording in the agreements as they are with keeping up with the civil works. My goal is to manage the interfaces and ensure a positive contract management for all companies.

What criteria do you use when deciding which firms and lawyers to instruct in relation to a construction issue?

Their expertise in the field; there are just a few firms which specialise in the construction/infrastructure market, so I tend to consult with those that demonstrate the best expertise and who can bring quick and precise answers to Tomé’s queries.

A key part of your role is reporting to the president and shareholders of the group – what is the extent of your interaction with the executive leadership at the company and do they play a role in the selection of firms to instruct for particular legal issues?

I report directly to the president and shareholder. They keep me informed about all legal occurrences and events, and they frequently request my opinion for structuring joint ventures and partnerships.

The group has a strong in-house presence across its four companies – are there currently any plans to expand Tomé’s in-house legal function? What matters in particular would you consider to be exclusively the remit of outside counsel which Grupo Tomé instructs?

There are no plans for expanding the in-house functions for now. Although the presence of in-house functions throughout Tomé’s activities as a whole is important, we try to keep it as compact as possible, without disregarding the high level of expertise that each branch demands in terms of legal work. The idea is to maintain the highest standards while ensuring that costs are managed effectively.

What is the biggest legal, economic or political challenge facing the Brazilian construction industry at the moment?

The Brazilian economy is now going through turbulence due to a chain of events relating to corruption involving public companies and politicians. Sadly, corruption has been part of Brazilian history for a long time, which severely affected the country’s growth and development. However, in the past few months, tighter investigations have been initiated and many schemes are finally being revealed. It is unquestionable that fighting corruption can only lead to positive results, but as with all healing processes this may leave scars and wounds in the near future, as investments tend to be withheld until the government regains the world’s trust and proves that Brazil is a safe environment for international investments. In addition, and not so much of a challenge but an opportunity, Brazil is now going through a period of huge demand for water and energy, therefore infrastructure works in these fields are urgent and new contracts must be ready for players who might be interested in the Brazilian market.

Drawing on your experiences both in-house and as a private practitioner, what are the defining differences in terms of the skills required for working as a corporate counsel, compared with acting as a private practitioner?

As a private practitioner I would not get involved with the company’s entire problems and issues. I would be engaged by the client for specific projects or demands, particularly those related to my field of expertise. As an in-house lawyer I have to be aware of all that goes on in terms of contracts, taxes, labour and corporate matters, which forces me to have a broader knowledge of legal subjects that affect the company.

What do you enjoy most about working as legal manager at Grupo Tomé?

It is not always easy to work with engineers, notably when they enter into legal aspects of their work without consulting with the lawyer in charge. This, however, tends to be minimised as Tomé emphasises to its employees the need of checking with the in-house department every time a potential legal issue comes up during their work. It is a challenge for the in-house team to keep up with this internal rule, but every time this follow-up is done correctly we notice that better results can be achieved.

Have there been any recent cases, legislative or regulatory changes which have affected the compliance or corporate aspects of your work?

No regulatory or legislative cases per se, but the new economic scenario has made us double our efforts with compliance and corporate governance issues in order to provide our customers and stakeholders with greater levels of confidence.

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