By Luiz Felipe Graziano
In recent Accounts Reviews, it was striking that the technical bodies of different State Courts of Accounts considered that the Public Administration had made advance payments in the case of disbursements relating to measurement reports whose criteria for measuring the services provided had been changed and no longer reflected what was originally set out in the respective tender notices prior to contracting, thus alleging a breach of the principle of adherence to the tender notice and of the budgetary provisions on the payment and settlement of public expenditure contained in Law 4,320/64.
There are several arguments against this allegation by the courts of accounts, of which we highlight the following: (i) the difference between form of payment and condition of payment; (ii) the difference between advance payment and bringing forward the physical-financial schedule; (iii) the natural mutability of administrative contracts, subject to legal requirements; among others.
On the first point, it is a matter of observing exactly what happens in each specific case: in fact, changing the criteria for measuring the services provided does not change any means or method of payment, but only the way in which the amount owed by the Administration is determined. Generally, the change is approved by the contracting entities on the proviso that the total amount disbursed for the item in question may not be exceeded, which brings us to the second point mentioned above.
Advance payment is an exceptional situation, intended to mitigate a certain burden or enable future performance, since it involves payment by the Administration without the private contractor having provided the service or supply — hence the advance. It is therefore different from bringing forward the physical-financial schedule, which may occur by breaking down items or changing the order of their stages, in duly justified extraordinary circumstances (as, indeed, the Federal Court of Accounts allows), but whose payment will be conditional on the prior provision of the service or supply relating to the item thus brought forward or broken down. For the latter, there is obviously no need for any provision in the tender notice; a justification based on a detailed assessment is sufficient.
Finally, insisting on the dogma that provisions must exist beforehand in the tender notice ignores the Procurement Law itself and the mutability of administrative contracts. Contract amendments are provided for in article 65 of Law 8,666/93 and may be unilateral or consensual, being an important instrument for making contracts viable. It is therefore a matter of giving real substance to the principle of efficiency, which is also a constitutional principle and equally applicable to the Public Administration, as much as the principle of legality, for example.
