The coronavirus pandemic has brought to the fore the little-discussed institution of administrative requisition. Enshrined in the Constitution (art. 5, XXV), administrative requisition is the Government’s right to use private property in the event of imminent public danger. In return, the owner of the property is guaranteed subsequent compensation if there is damage.
Following Federal Law 13,979/2020 which, in establishing the Federal Government’s measures to address the public health emergency caused by the coronavirus, provided for the possibility of authorities requisitioning goods and services from individuals and legal entities (art. 3, VII), numerous state and municipal decrees have been issued to support the use of this prerogative by their respective governments.
There seems to be no doubt that the country is facing imminent public danger, which, in theory, would be enough to satisfy the essential constitutional requirement for State intervention in private property for collective purposes. However, considering the immediate losses caused to those whose goods, services or property are requisitioned, the Government may only use this prerogative as a last resort, that is, after analyzing the possible alternatives and finding that there is no less burdensome option.
Note that the same Law 13,979/2020 made tenders waivable for the purchase of goods, services and supplies intended to address the public health emergency resulting from the coronavirus. The waiver of tender is temporary, applying for as long as the emergency lasts. And preliminary studies are not even required; a simplified terms of reference or a simplified basic design is enough (art. 4-E).
It is therefore logical to conclude that public managers may only resort to intervention in private property if they demonstrate that it is unfeasible to directly contract, with a waiver of tender, the individual or legal entity whose goods or services they intend to expropriate.
Unfortunately, however, this is not what has been seen. A good example is the requisition by the Federal Government of ICU ventilators already purchased by the Municipality of Recife. It took a court order from the Presidency of the TRF-5, issued last Sunday (22nd), for the company contracted by the City to disregard the Federal Government’s requisition and deliver the ventilators to the Municipality of Recife. Also in Pernambuco, on the 19th, the State Government entered a hospital supply store in the city of Recife to collect disposable masks to supply the state health network.
The predictable pretext of urgency and, consequently, of the impossibility of waiting for the procedures preceding a waiver of tender will rarely be justified, given that Law 13,979/2020 genuinely simplified the content of the terms of reference or basic design preceding direct contracting. A glance at the requirements described in art. 4-E is enough to confirm this. It is no rhetorical exaggeration to say that the work and time needed to carry out an administrative requisition and a waiver of tender are relatively identical.
It is therefore abusive, as well as inappropriate and arbitrary, for a public manager to take advantage of the existing state of public calamity to requisition goods and services — especially health-related ones — postponing the compensation owed to the requisitioned party to a future and uncertain date, when they could very well contract the same individual or legal entity directly. Such conduct, in these circumstances, must be challenged through the appropriate channels, and it is the role of the Judiciary to curb the excesses we have been witnessing.
