by Fernanda Leoni

The possibility of companies participating in public tenders as a consortium is certainly a fundamentally important instrument for enabling the best combination of efforts towards a common goal, as it increases competitiveness and, in some cases, even allows the public interest to be served more precisely.

Under the rules introduced by Federal Law 14,133/2021, the provisions on consortium participation are mostly set out in article 15 of the law which, although it reproduces many of the provisions of Federal Law 8,666/1993, also introduces some innovations on the subject, giving greater legal certainty to the Public Administration and private parties interested in contracting with it.

The first noteworthy aspect is that, unlike the wording of the caput of article 33 of Law 8,666/1993, the current law broadly allows consortium participation, requiring any prohibition to be properly justified by the contracting entity.

Indeed, under article 18, item IX of the law, all rules on consortium participation must be duly justified in the detailed reasoning for the conditions of the tender notice, prepared in the preparatory phase of the tender process.

The items of article 15, which govern the general rules for consortium participation, maintain some provisions of the previous rules, such as the obligation to submit a public or private undertaking to form a consortium, the prohibition on the same company participating in more than one consortium or individually, and the joint and several liability of the consortium members (article 15, items I, IV and V, respectively).

On the other hand, the leadership conditions are changed and are now strictly defined among the consortium members, without the requirement that, in consortia between Brazilian and foreign companies, leadership be exercised by the Brazilian company (article 15, item II) — which had already been the subject of well-founded criticism in legal scholarship1.

The rules on combining the consortium members’ capacities are maintained, allowing, for technical qualification, the sum of each member’s quantities and, for economic-financial qualification, the sum of each member’s amounts.

Especially with regard to technical qualification, article 67, §10 of Law 14,133/2021 sets out specific rules on the use of certificates that do not contain precise information on the activities performed by each consortium member individually, using the scholarly criterion that distinguishes between homogeneous and heterogeneous consortia2, although without providing any legal definition of the terms used.

According to the provision, in homogeneous consortia — understood as those made up of companies with similar corporate purposes — experience will be divided according to each company’s percentage share in the consortium, except in contracts for specialized technical services of a predominantly intellectual nature, in which all certified experience will be equally attributed to each consortium member.

In heterogeneous consortia — made up of companies with different corporate purposes — experience will be allocated according to each member’s specialization, including in tenders for specialized technical services of a predominantly intellectual nature.

The possible imposition of a percentage increase in amounts, under article 15, §1, now ranges from 10% to 30% of the amounts applicable to individual bidders, and these percentages may be waived upon justification by the Government; the inapplicability of this rule to consortia made up entirely of micro and small enterprises is maintained (article 15, §2).

Likewise, the consortium declared the winner of the tender is still required to be duly incorporated and registered before the contract is signed, in accordance with the rules established in the undertaking signed by the consortium members and submitted together with the qualification documents (article 15, §3).

§4 of article 15 of the new law allows the tendering Administration to limit the number of companies in a consortium, provided it does so on the basis of a technical justification approved by the competent authority. This provision incorporates the guidance already applied by oversight bodies.

Finally, a last relevant provision is introduced by §5 of the same article, filling a gap in the previous legislation on the subject by allowing the replacement of a consortium member, provided it is expressly authorized by the contracting party. For this replacement to be authorized, the company joining the consortium must prove at least the same technical qualification quantities and the same economic-financial qualification amounts demonstrated by the company being replaced.

1 For Marçal Justen Filho, the rule would be unconstitutional for violating free enterprise (JUSTEN FILHO, Marçal. Comentários à lei de licitações e contratos administrativos. 16th ed. São Paulo: Revista dos Tribunais, 2014. p. 663). Hely Lopes Meirelles, in turn, argues that the provision would have been repealed by the change introduced by Constitutional Amendment No. 06/1995, which eliminated the distinction between Brazilian companies and companies with national capital, previously contained in article 171 of the Federal Constitution (MEIRELLES, Hely Lopes. Licitação e contrato administrativo. 12th ed. São Paulo: Malheiros, 1999. p. 85). 2 See: “In some cases, consortia bring together companies with similar purposes, which associate to combine equivalent resources or experience — homogeneous. In other cases, each company operates in a particular segment of activity and the consortium aims to bring together distinct and unmistakable qualifications — heterogeneous” (JUSTEN FILHO, Marçal. Comentários à lei de licitações e contratos administrativos. 16th ed. São Paulo: Revista dos Tribunais, 2014. p. 659-660)

Article originally published in the Licitações e Contratos column on Portal da Infra (in Portuguese), on 06.25.2021.