It can already be said that the coronavirus pandemic facing Brazil marks an unprecedented period in the country’s history, forcing the Executive Branches to adopt emergency measures to minimize — or at least limit — the impact the virus may cause, as has already occurred in Asian and European countries and now in the United States.
A few days before the first official case was confirmed in the country, Federal Law 13,979 of February 6, 2020 was enacted, providing for measures to deal with the public health emergency of international concern resulting from the coronavirus responsible for the 2019 outbreak, later supplemented by Provisional Measures 926 and 927 of 2020 and regulated by Decrees 10,282 and 10,288 of 2020.
Of particular note, and the subject of this article, is the waiver of tender for the purchase of goods, services, including engineering services, and supplies intended to address the public health emergency, with the exceptional possibility of contracting companies sanctioned with a declaration of unfitness or suspension of the right to participate in tenders or contract with the Government, where they are demonstrably the sole suppliers of the good or service to be acquired (article 4, §3).
This topic was even highlighted at the press conference given by the Minister of the Office of the Comptroller General (CGU), Wagner Rosário, on April 3, who stressed that the government, in the current period, has not been able to “follow all the procedures”
Waiver of tender in cases of emergency or public calamity was already permitted by Federal Law 8,666/93 (art. 24, item IV); however, given the current national scenario and the seriousness of the virus’s spread, especially the impact the economy is already suffering and the need to adopt emergency measures, acquiring the goods and services needed to combat the spread of the disease and treat the infected, the possibility of contracting sanctioned companies proves very timely and appropriate.
On this subject, we highlight the following important points to be observed, with the necessary criticism and comments.
The first point concerns §3 of article 4 of the law, which from the outset makes the exceptional contracting of a company sanctioned by the Government conditional on it being demonstrably the sole supplier of the good or service to be acquired.
This shows that such contracting is an exception to the rule, and the Government should prefer contracting, through waiver of tender, companies not subject to any administrative penalty.
The second point concerns the administrative sanctions referred to in the law, which arise from provisions of other statutes and correspond to the two most serious penalties, in increasing order of severity: (i) temporary suspension from participating in tenders and prohibition from contracting with the Administration; and (ii) declaration of unfitness to tender for or contract with the Public Administration.
Such sanctions are applied mainly under Law 8,666 (Procurement Law), as well as Law 8,429/92 (Administrative Improbity Law), Law 10,520/02 (Reverse Auction Law), among other rules, including the Organic Law of the Federal Court of Accounts, which provides for the power to impose penalties (article 46 of Law 8,443/92) — which shows that the possibility of contracting companies sanctioned with a declaration of unfitness or suspension of the right to participate in tenders or contract with the Government, for the purposes of article 4, §3 of Law 13,979, does not depend on the administrative or judicial sphere in which the proceedings were conducted, nor on the legal provision under which the conduct was classified.
The third point concerns the term of the exceptional contract entered into through waiver of tender.
Under article 4-H, contracts governed by Law 13,979 will have a term of up to six months and may be extended for successive periods for as long as the need to deal with the effects of the public health emergency persists, which may not exceed that declared by the World Health Organization (article 1, §3).
The provisions mentioned are very appropriate, as they allow the Government to benefit from the provision of the services, goods and supplies needed during the emergency period, maintaining the conditions to sustain the public health system for as long as the pandemic lasts.
The fourth point — and here a criticism — is the condition that contracting is only allowed where the company is demonstrably the sole supplier of the good or service to be acquired.
The law assumes that the exception would only apply when it is impossible or unfeasible for goods, services and supplies to be provided by other companies not subject to sanctions imposed by the government.
There is no doubt that any company declared unfit or deprived of the right to participate in tenders and contract with the government must serve the penalty imposed on it, provided that due administrative process has been respected and all opportunities for defense and appeal to overturn the sanction have been exhausted. Not least because one of the purposes of the penalty is educational, seeking to reduce and discourage wrongdoing and its repetition.
However, considering the current pandemic scenario the country is going through, with frequent reports of shortages of extremely relevant and important goods and supplies for tackling the virus crisis (such as a lack of hospital supplies and shortages of surgical masks, liquid or gel alcohol, mechanical ventilators, among other supplies), and with great fear of the public health system collapsing, the condition and requirement that sanctioned companies may only be contracted if there are no other suppliers of the goods and services to be acquired seems inappropriate.
Imagine a supplier of mechanical ventilators (essential equipment for treating the most serious cases of covid-19) with no impediment to tendering for and contracting with the government that is unable to meet the necessary demand. In this example, the condition in the legal provision will prevent the contracting of another supplier of the same equipment that is sanctioned but could supply the additional ventilators needed to treat the infected.
Our argument is that, provided the quality of the goods, services and supplies is satisfactory and prices are within the market average, it is not reasonable to make the contracting of a company declared unfit or suspended from tendering and contracting with the government conditional solely on there being no competitors.
Brazil is in a declared state of public calamity, an entirely exceptional situation, so it seems more advisable at this time to suspend this condition of the rule, allowing sanctioned companies to be contracted on a complementary basis, while respecting the preference for companies not subject to any penalties.
The government is able to oversee and verify the advantageousness and economy of the prices charged by sanctioned companies, as well as to oversee the regularity of the services provided; exceptional problems call for exceptional solutions, and this is the right time to set aside excessive rigor and formalism and prioritize the right to life and public health until everything returns to normal.
Article originally published in Estadão, in Fausto Macedo’s column (in Portuguese), on 04.07.2020.
