Souza and Vanderlind: The Law of Giving: Application and Principles

Approved by the Presidency of the Republic on April 1, 2021, Law 14133/2021 brings significant changes to the bidding procedures and the formalization of administrative contracts.

Although there are foreseen transitional rules, there is a need to study the expected changes, because the scope of the new commitments of general managers will require effort, optimization and planning.

We do not lose sight of the fact that a bid is a procedure (a set of procedures) by which a public authority seeks, by predetermined, economic and general criteria, to select the best alternative for the performance of the contract.

In the teaching of Celso Antonio Bandera de Milo, Tender “It is a contest in which governmental entities must strengthen and open up a dispute between those interested in establishing certain relationships with them from the genetic content, to choose the most advantageous proposal for the common good.” [1].

The duty to bid is expressly provided for in Article 37, Clause XXI, of the Federal Constitution (Duty to Bid), and under the provisions of Article 22, Clause XXVII, also of the CF, the Federation is exclusively responsible for general legislation. Bidding rules. Referring to ‘general rules’, the Magna Carta allows other entities to legislate on ‘specific rules’, an interpretation that has caused the doctrine to be defined that although it is in the article outlining special jurisdictions, it is a concurrent jurisdiction.

Therefore, the matter is of paramount importance to day-to-day public administration and it is clear that the new framework needs special attention.

Finally, in order to have an idea of ​​what is to come, Basic Infrastructure Rules dealing with this issue Law No. 8.666/93 (Bidding Law), Law No. 10.520/02 (Public) and Law 12.462/2012 (Differentiated System of Public Contracts – RDC), Abolished by the new diploma.

It should be noted that state-owned companies remain subject to the provisions of Law No. 13303/2016.

Scope of application of the new law
According to Article 1 of the New Law, it applies to direct, autocratic and constituent administrations, as well as to bodies of legislative and judicial powers of the Federation, states, the Federal District and bodies of the legislative power of municipalities, when they perform an administrative function.

It also applies to private funds and other entities directly or indirectly controlled by the public administration.

It is important to note, as mentioned above, that Law No. 13303 of June 30, 2016, has not been repealed, and the new law will not cover state-owned companies (public companies, mixed capital companies and subsidiaries).

In this case, the only exception to the application also in state-owned companies is the provisions of Article 178 of the new law, which incorporated the chapter “Offences in tenders and administrative contracts” in the Penal Code.

Pursuant to Article 2, the Act applies to the transfer of ownership of goods and granting them a real right to use the goods, to purchase, rent and give the goods, to allow the use of public goods, to provide services, including specialized technical professionals, and to contract information and communications technology. .

From the North Post Article 3º It specifies that contracts the subject of which are credit operations, internal or external, and public debt management are not subject to the new Tender Law, including the appointment of a financial agent and the granting of guarantees related to these contracts, as well as contracts subject to the rules stipulated in specific legislation.

Finally, it should be noted that the law deals with the issue of including bids and contracts the rules contained in Articles 42 to 49 of Supplementary Law No. 123/2006, which defines the statutes for micro and small companies.

Such provisions have brought into the national legal system that the ME or EPP clause is a deciding criterion in bidding, as well as providing a privileged treatment aimed at promoting the national small entrepreneur.

However, the new law brings some conditions for the application of LC 123/2006, such as in the case of bidding for the acquisition of goods or contracting for services in general, to the item whose estimated value is above the maximum total revenue acceptable for purposes of classification as a small business, i.e. 4.8 million BRL per year.

Also, the new law in this regard does not apply, in the case of contracting for works and engineering services, to bids whose estimated value exceeds the maximum acceptable total revenue for the purposes of classification as a small company.

Finally, accrual of benefits applies only to MEs and EPPs, which in the calendar year of the bidding process have not yet signed contracts with the public administration, for which the amounts collected exceed the maximum total revenue accepted for classification purposes. business, and the entity or entity must require the bidder to declare compliance with this limit in the bidding process.

principles
As for the principles, Law 14.133/2021 brought important changes as well. Bearing in mind that this topic deserves deep thought, given the importance of the principles of public administration.

From the teachings of Marshall Justin Philo one can”To say, then, that principles perform a very closely related normative function in relation to the administrative law system. With some exaggeration, it can be said that the principles have a more important influence on administrative law than they do on private law. [2].

The list of principles listed in Article 3 of Law No. 8.666/93 is not exhaustive, since the article itself defines principles and mentions “relevant principles”. In fact, the efficiency principle was not mentioned in Article 3, as it appeared in the header of Article 37 of the Facilitation Act with EC 19/98.

On the other hand, Law 14.133/2021 provided an extensive list of principles contained in Article 5 thereof. They are: legitimacy. Anonymous; Moral. publicity efficacy; general interest; Administrative Integrity Equality. Planning; Transparency ; efficacy; segregation of duties; incentivize; obligated to notice; objective judgment of legal certainty; reasonableness; Competitiveness. proportionality; Speed. Economie; Sustainable National Development and the Provisions of Decree-Law No. 4657/42 (Introduction to the Rules of Brazilian Law).

Many of the principles listed are rooted in administrative law in a broad way, with an emphasis on the planning principle, which inspires many provisions of the New Bidding Act and Lindb’s provisions.

This is because when referring the translator to provisions Decree-Law No. 4.657/42, the new diploma includes, for example, Article 22 which states: In interpreting the rules relating to public administration, the real obstacles and difficulties faced by the manager and the requirements of public policies subject to his responsibility will be considered, without prejudice to the rights of those who administer them.”

It is an undeniable progress in the face of the reality imposed by a country of continental proportions, with disparate administrative structures, especially when we think of the small Brazilian municipalities.

Conclusion
Law 14133/2021, given the scope of the imposed changes and the abolition of important certificates, will require the public administration to change the routine and implement until then institutes that are built under decisions and guidelines of the Courts of Accounts.

Thus, study and efforts to adapt are of paramount importance to public administration. The initial focus should be planning, involving all sectors and regulating dozens of legal provisions, leading to the application of the new bidding law taking into account the realities of each federal entity.


reference
Brazil. Law No. 14133 of April 1, 2021. Available at: http://www.planalto.gov.br. Accessed on: 2/23/2022.

Brazil. Law No. 8666 of June 21, 1993. Available at: http://www.planalto.gov.br. Accessed on: 2/23/2022.

Brazil. Decree-Law No. 4657, September 4, 1942. Available at: http://www.planalto.gov.br. Accessed on: 2/23/2022.

Son Marcel Justin. Course in Administrative Law. 10th edition, São Paulo: RT, 2014. s. 142

Milo, Celso Antonio Bandera. Course in Administrative Law. Malheros: Sao Paulo: 2007.

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