by Daniel Stein
System is the key word to summarize what Law 14,133/2021, the New Procurement Law (“NLL”), represents, as it seeks to consolidate the tender rules of separate laws such as the now repealed Reverse Auction Law, RDC Law and Law 8,666/1993. Within a system, principles take on special relevance, as they are the structural rules that give cohesion to the relationship between the rules within it*.
Principles thus act as premises of legal reasoning in the practical application of the law and, in the case of the NLL, they are listed in its art. 5:
Art. 5 In applying this Law, the principles of legality, impersonality, morality, publicity, efficiency, public interest, administrative probity, equality, planning, transparency, effectiveness, segregation of duties, reasoning, adherence to the tender notice, objective evaluation, legal certainty, reasonableness, competitiveness, proportionality, speed, economy and sustainable national development shall be observed, as well as the provisions of Decree-Law No. 4,657 of September 4, 1942 (Law of Introduction to the Norms of Brazilian Law).
A first reading shows a clear tendency to bring together principles that were scattered throughout the former procurement law with the constitutional principles of public administration and other provisions such as reasonableness, proportionality and legal certainty. Also noteworthy is the reference to the LINDB, which brings to the fore especially the provisions it contains following the amendments introduced by Law 13,655/2018 — practically a general public law statute.
Thus, issues such as the objectives of public policies, the rights of individuals, the real circumstances surrounding the intended contract, the consequences of acts and consensualism are directly intertwined with the day-to-day application of the NLL by express legal provision.
Given the profusion of principles above, the challenge emerges of weighing these principles in each specific case, along the lines advocated by Robert Alexy and frequently cited in Brazil’s higher courts. See, for example, citations of this author in at least 14 general repercussion cases at the Federal Supreme Court**.
However, reading these principles together, combined with a systematic and structural interpretation of the NLL, reveals that, given the great weight placed on tender planning combined with the general systematizing character provided for in the LINDB, there is an essential pairing of reasoning and consequence in the conduct of public procurement.
This means not neglecting the legality of public managers’ acts, but also ensuring that they are not straitjacketed and can seek the most efficient way of achieving the objectives of their public action with the intended contract. Flexibility is valued, provided it is justified and recorded.
In light of this framework of principles, it is hoped that both public managers and oversight bodies will have a broader perception of the possible means of contracting, understanding the circumstances and seeking more efficient contracting methods, with a focus on the intended result.
* See Ferraz Júnior, Tércio Sampaio Introdução ao Estudo do Direito São Paulo, Atlas, 1994 pp. 246-248
** 1. RE 635739, decided 02.19.2014; 2. RE 958252, decided 08.30.2018; 3. RE 583523, decided 10.03.2013; 4. RE 870947, decided 09.20.2017; 5. RE 843112, decided 09.22.2020; 6. RE 626946, decided 10.13.2020; 7. RE 586224, decided 03.05.2015; 8. RE 841526, decided 03.30.2016; 9. RE 592891, decided 04.25.2019; 10. RE 638491, decided 05.17.2017; 11. RE 888815, decided 09.12.2018; 12. RE 971959, decided 11.14.2018; 13. RE 466343, decided 12.03.2008; and 14. RE 363889, decided 06.02.2011
Article originally published in the Licitações e Contratos column on Portal da Infra (in Portuguese), on 06.11.2021.
