by Camillo Giamundo and Marília Bassi

The New Procurement Law (Law 14,133/2021) consolidated rules and practices from three of the main statutes used to guide public procurement in Brazil: Law 8,666/1993, the former General Law on Procurement and Contracts; Law 10,520/2002, which governs the reverse auction modality; and, finally, Law 12,462/2011, which established the RDC (Differentiated Public Procurement Regime).

The innovations introduced by the new statute reflect the need to bring efficiency and transparency to public procurement, such as (i) the inversion of phases as the rule in tender procedures; (ii) the mandatory compliance program for large-scale contracts; (iii) the creation of the National Public Procurement Portal (PNCP); (iv) updated thresholds for direct contracting; and (v) the incorporation of the modality known as competitive dialogue.

Specifically regarding the usual and frequent purchases of the public administration, we highlight the main changes to the price registration system, one of the so-called auxiliary procedures, provided for from art. 82 of Law 14,133/2021 onwards.

Before the new law, price registration was provided for in art. 15, II and paragraphs of Law 8,666/1993, and was regulated at the federal level by Decree No. 7,892/2013 and Decree No. 9,488/2018.

Indeed, without departing from the already familiar definition, Law 14,133/2021 describes the price registration system as the “set of procedures for carrying out, through direct contracting or a tender in the reverse auction or competitive bidding modalities, the formal registration of prices relating to the provision of services, works and the purchase and lease of goods for future contracts” (art. 6, XLV).

Although recent case law of the courts of accounts already allowed the use of the price registration system for contracting engineering works and services, the new law resolved the lack of a legal provision and expressly provided for it, making contracting conditional on meeting the following requirements: (i) the existence of a standardized design, without technical or operational complexity; and (ii) a permanent or frequent need for the work or service to be contracted, under art. 85 of Law 14,133/2021.

Also in line with the previous provisions, art. 83 reaffirms that the public administration is not obliged to contract after registering the prices of goods and services, although participants are bound by the conditions set out in the call for bids if the contract is formalized.

In addition, Law 14,133/2021 also changes the conditions for participation by bodies or entities that did not take part in the price registration record, popularly known as “piggybackers”. Bodies that did not take part in the price registration but wish to take advantage of the procedure already conducted by other entities must meet certain requirements to join, namely: (i) provide a justification of the advantage of joining, including in situations of likely shortage or discontinuity of public services; (ii) demonstrate that the registered prices are compatible with market prices; and (iii) prior consultation with and acceptance by the managing body or entity and the supplier (art. 86, §2, I to III).

Additional contracts, however, may not exceed 50% of the quantities of the items in the call for bids and registered in the price registration record for the managing body and the participating bodies, according to the rule already provided for in art. 22, paragraph 3 of Decree No. 7,892/13 and replicated in paragraph 4 of art. 86 of Federal Law 14,133/2021.

The new law notes, however, that the total quantity resulting from joining price registration records may not exceed double the quantity of each item registered in the price registration record for the managing body and participating bodies, regardless of the number of non-participating bodies that join (art. 86, §5).

On the other hand, in view of extraordinary events and needs affecting public procurement, such as the current global pandemic, paragraph 7 of art. 86 exempts the emergency purchase of medicines and medical-hospital consumables from the limit set out in paragraph 5 of the provision mentioned above, which limits the quantity of contracts resulting from joining price registration records.

Another rule, already set out in Decree No. 7,892/13, which deserves attention is the provision of paragraph 8 of art. 86, which prohibits bodies and entities of the federal public administration from joining records managed by other federative entities, while municipalities and states may join records managed by the Federal Government.

Once formalized, the price registration record will be valid for one year and may be extended for an equal period, provided that the continued advantageousness of the registered prices is demonstrated. The contract arising from the record will have its term established in accordance with the provisions contained therein (art. 84).

Finally, although contracting through price registration is possible, thus giving effect to the principle of efficiency and speed in procedures for acquiring goods and services, Law 14,133/2021 allows the Administration to hold a specific tender, provided it is duly justified, under art. 83.

The new Procurement Law therefore represents positive progress by consolidating and regulating practices already carried out in public tenders, especially in the price registration system, creating clear and well-established procedures.

Article originally published in the Licitações e Contratos column on Portal da Infra (in Portuguese), on 08.20.2021.