On 02/03/2021, in a public session of the Plenary, the Federal Court of Accounts established its understanding on the proper calculation for requiring an additional guarantee when entering into administrative contracts arising from bids with presumably unfeasible amounts, as set out in Judgment No. 169/2021.
The understanding was expressed in response to a consultation submitted by the Federal Regional Court of the 1st Region on the best interpretation of the wording of article 48 of Federal Law 8,666/1993 which, in dealing with the subject, raised a number of doubts in its application, often criticized by legal scholarship and case law.
Under that legal provision, bids exceeding the tender budget or considered manifestly unfeasible would be disqualified, unless their feasibility was proven by demonstrating that the costs of their inputs were consistent with market prices and that their productivity coefficients were compatible with the performance of the contract.
To identify (or presume) unfeasibility, §1 of the same provision establishes an objective parameter, so that bids lower than 70% of the lesser of the following amounts will be considered unfeasible: (i) the arithmetic mean of the amounts of bids above 50% of the amount budgeted by the administration; or (ii) the amount budgeted by the contracting Administration.
Note that the unfeasibility of the bid, derived from the calculations mentioned above, is a rebuttable presumption, as follows from article 48, item II, of the law itself, which allows the bidder to prove that its prices are adequate. This conclusion is reinforced by TCU Summary 262, which states that “the criterion defined in article 48, II, §1, ‘a’ and ‘b’ of Law 8,666/1993 leads to a rebuttable presumption that prices are unfeasible, and the Administration must give the bidder the opportunity to demonstrate the feasibility of its bid”.
But there is a second presumption of unfeasibility established by the law, which allows the bidder to be contracted, even without proof that its prices are adequate, provided the contractual guarantee is reinforced, and whose application has been questioned for years because of the difficulty in understanding the wording of the legal provision, which reads as follows:
Art. 48. The following shall be disqualified:
(…)
§ 1. For the purposes of item II of this article, in lowest-price tenders for engineering works and services, bids whose amounts are less than 70% (seventy percent) of the lesser of the following amounts shall be considered manifestly unfeasible:
a) the arithmetic mean of the amounts of bids above 50% (fifty percent) of the amount budgeted by the administration, or,
b) the amount budgeted by the administration.
§ 2 Bidders qualified under the preceding paragraph whose overall bid amount is less than 80% (eighty percent) of the lesser amount referred to in subparagraphs “a” and “b” shall be required, in order to sign the contract, to provide an additional guarantee, in one of the forms provided for in § 1 of art. 56, equal to the difference between the amount resulting from the preceding paragraph and the amount of the corresponding bid.
As the SeinfraRodoviaAviação technical team rightly pointed out in the report forming part of Judgment No. 169/2021, §2 of article 48 allows at least three different interpretations of what would constitute the “amount resulting from the preceding paragraph”, namely: (i) 70% of the lesser of the amounts in subparagraphs “a” and “b” of §1 of article 48; (ii) the lesser of the amounts in subparagraphs “a” and “b” of §1 of article 48; or (iii) 80% of the lesser of the amounts in subparagraphs “a” and “b” of §1 of article 48.
As for the first interpretation, the TCU, based on the views of Maria Sylvia Zanella Di Pietro, had been rejecting it as disproportionate. In this regard, Judgment No. 2,503/2018-Plenary, a relevant precedent on the subject, drew on the author’s teaching in considering that “the literal interpretation of the provision, which would lead to calculating the amount of the guarantee as the difference between 70% of the lesser amount referred to in subparagraphs ‘a’ and ‘b’ of §1 and the amount of the corresponding bid, must be rejected, because it would lead to absurdity”.
The last interpretation was used by the Federal Regional Court of the 1st Region, which submitted the consultation, based on the teaching of Marçal Justen Filho, for whom “the only way to make the legal guarantee effective is to assume that the guarantee must cover the difference between the amount of the bid and 80% of the lesser amount determined under §1”.
Comparing the two interpretations commonly adopted and applying them to practical examples, the Court of Accounts’ technical team found that adopting the first criterion would result in an additional guarantee that could range from 29% to 43% of the contract value, a percentage very different from that established in article 56 of the General Procurement Law (which reaches a maximum of 10% of the contract value, and even then applies only to larger and technically more complex contracts).
In view of this, the technical team considered that the conclusion most consistent with a logical and systematic interpretation of §2 of article 48 of the Procurement Law was the one establishing the following formula for calculating the additional guarantee: “Additional Guarantee = (80% of the lesser of the amounts in subparagraphs “a” and “b” of §1 of article 48) – (amount of the corresponding bid)”.
The technical team’s analysis, endorsed by the Public Prosecutor’s Office before the Court of Accounts, was adopted by the Court’s Plenary, with only a dissenting vote from Justice Weder de Oliveira, who considered that the consultation could not be heard given the possible lack of standing of the consulting authority.
Finally, it should be clarified that, under article 264, §3, of the TCU Internal Rules, the answer to a consultation “is normative in nature and constitutes a prejudgment of the thesis, but not of the specific fact or case”, so that the understanding established must, from the publication of the judgment, be observed by all entities that enter into contracts with federal funds.
NOTES:
[1] DI PIETRO, Maria Sylvia Zanella. Qual a forma de calcular a garantia adicional prevista no art. 48, § 2º, da Lei nº 8.666/93? Revista Zênite – Informativo de Licitações e Contratos (ILC), Curitiba: Zênite, n. 263, p. 10-16, Jan. 2016.
[2] JUSTEN FILHO, Marçal. Comentários à lei de licitações e contratos administrativos. 16th ed. Rio de Janeiro: Revista dos Tribunais, 2014. p. 878.
Article originally published in Estadão, on the Gestão Política e Sociedade blog (in Portuguese), on 02.12.2021.
