by Thays Chrystina Munhoz de Freitas
Federal Law 14,133/2021 was enacted to implement a general public procurement regime, standardizing the rules applicable to tender modalities and public contracting regimes previously governed by separate laws, such as the Reverse Auction and the RDC (Differentiated Contracting Regime). In addition, the Law introduced innovations relating to models and institutions not yet tried and used in Brazil, seeking to modernize and improve the planning of public management with regard to public procurement.
Another aspect of the Law concerns the codification and regulation of issues that arose over the almost 30 years in which Law 8,666/93 was in force, largely drawn from settled discussions within oversight bodies and the Judiciary regarding the application of that law’s provisions1.
In this regard, articles 6, XLIII, and 79 of the new Law likewise codified and regulated Accreditation, whose use became widespread while Law 8,666/93 was in force, even though that law contained no specific provision on the subject.
Indeed, the contours of Accreditation were defined based on the guidance of oversight bodies, especially the Courts of Accounts, which indicate that this contracting model stems from the impossibility of competition that would allow the Administration to choose the most advantageous proposal, fitting into the situation of non-requirement of tender governed by article 25 of Law 8,666/93.
In this sense, analyzing specific cases reveals situations of impossibility of competition in the pursuit of the best technique or the best quality, since such requirements are set by the Administration in the call notice, for which it had an interest in contracting the entire universe of interested parties at a fixed, predetermined price.
When examining the matter, the TCU (Federal Court of Accounts) supported the adoption of Accreditation as a case of non-requirement of tender for contracting medical-hospital and dental services to meet the demand of federal civil servants (Decision No. 656/1995), on which occasion it outlined some essential aspects for its characterization and to ensure its proper adoption by the Public Administration2.
In addition, laws, rules and opinions were issued by administrative entities and bodies3 to regulate the use of this type of contracting within their spheres of competence, drawing on the guidance set out by the TCU and establishing other requirements to improve its use, such as the need for the respective administrative proceedings to include an opinion justifying the use of non-requirement of tender, submission of the draft contract to the Legal Department for review, the prohibition on setting restrictive criteria for distributing demand, the need to observe objective accreditation criteria that do not undermine equal treatment, and restriction of the universe of interested parties.
Given the existence of different understandings regarding the cases in which Accreditation may be used and how it is regulated, often resulting in a lack of uniformity in the application of rules and aspects related to its implementation, it can be concluded that Federal Law 14,133/2021 did well to codify the matter, confirming that it is a case of non-requirement (art. 74, IV), also enabling its use for the supply of goods, and setting out in its articles 6, XLIII, IV, 78, I, and 79 the concept and rules applicable to Accreditation.
Although the need to regulate Accreditation is provided for, the provisions of the new Law defining it, classifying it as an auxiliary contracting procedure and, above all, setting out the cases4 and fundamental rules that should guide its use, have given greater legal certainty to the Public Administration and private parties adopting/operating under this contracting model.
In this regard, the regulation of Accreditation is expected to shed light on other points and aspects debated during the use of the institution, such as identifying the instrument(s) required to formalize the legal relationship arising from it, defining them according to the nature and characteristics of the object to be provided (goods, continuous services or on-demand services), and identifying the rules applicable to them, so as to fill the gaps that have emerged from its use based on interpretations not reflected in Brazilian legislation.
On this specific point, the regulatory rule is expected to provide greater understanding of the contracting format arising from the call made to the private party to perform the intended service or supply, outlining more clearly, based on its nature and characteristics, the rights and obligations arising from it.
To illustrate, it is necessary to clearly identify whether the call will require the relationship to be formalized through an administrative contract, bringing into play the provisions on terms, the right to price adjustments and the conditions for performing the services and supply, or through a substitute instrument (commitment note, service order, etc.), for which there are different guidelines and rules on the obligations and rights assumed by each party.
Although there are aspects that still need to be better defined regarding contracts arising from Accreditation, and indications that other discussions will arise around the institution — which is natural with any legislative change, whether to introduce or consolidate concepts in the legal system — for now, Law 14,133/2021 deals with the institution appropriately, proving to be a suitable instrument to address the discussions that lie ahead.
1 Such as, for example, defining a percentage to identify the portions of greatest technical relevance or significant value for the purpose of setting technical qualification requirements (article 67, §1), limiting the quantities that may be required to prove technical qualification (article 67, §2), and criteria for assessing technical qualification through technical certificates issued in favor of a Consortium of companies (art. 67, §10, items I and II).
2 The criteria and requirements listed by the TCU can be summarized as follows: (i) wide dissemination and publicity of the call notice, so as to broaden the universe of interested and accredited parties; (ii) setting the minimum criteria and requirements for accrediting interested parties, ensuring good service and proper provision of services; (iii) carefully setting the table that will remunerate the various service items provided, adjustment criteria, and payment terms and deadlines; (iv) prohibition on paying surcharges over the table used to remunerate the services; (v) setting cases for accreditation in the event of non-compliance with the rules and conditions set out in the Notice for serving users; (vi) allowing accreditation at any time, provided the minimum conditions required are met; (vii) providing for the possibility of terminating the arrangement at any time, upon notice from the Public Administration, with minimum advance notice in accordance with the period set out in the call notice; (viii) the possibility for users to report any irregularity found in the provision of services and/or billing; (ix) setting the rules to be observed by the accredited party in serving users.
3 For example, Law No. 16,920/2010 of the state of Goiás; Law No. 9,433/2005 of the state of Bahia; Law No. 15,608/2007 of the state of Paraná; Opinion No. 0003/2017/CNU/CGU/AGU.
4 “Art. 79. Accreditation may be used in the following contracting cases:
I – parallel and non-exclusive: where it is feasible and advantageous for the Administration to enter into simultaneous contracts under standardized conditions;
II – with selection at the discretion of third parties: where the selection of the contractor is up to the direct beneficiary of the service;
III – in fluid markets: where constant fluctuations in the price of the service and contracting conditions make it unfeasible to select an agent through a tender process.”
Article originally published in the Licitações e Contratos column on Portal da Infra (in Portuguese), on 08.09.2021.
