by Davi Madalon Fraga

Good budgeting practice in public works requires that the reference budget for tenders and contracts be prepared based on official price references, notably Sicro and Sinapi, as required by arts. 4 and 5 of Decree 7,983/2013.

These price reference systems, prepared by bodies of the Public Administration itself, are known to be specific to certain types of works – highways, in the case of Sicro, and ordinary civil works, in the case of Sinapi – and they take into account variations in the cost of inputs and labor across the country’s regions and are constantly updated, undoubtedly serving as a reliable benchmark for budgeting public projects in Brazil.

However, in certain situations, for some types of services given their complexity, or for certain contracting modalities and even particular types of works, the indiscriminate use of the references in these systems may not be the best practice to represent the costs that will actually be incurred during the implementation of a given project.

These situations are routinely identified by the Public Administration’s tendering bodies, which need to find sound alternatives to address them, preventing prices from exceeding those charged by the market and thus ensuring competitive prices and protecting the public treasury.

This procedure must be carried out with great care, transparently, according to objective criteria, and duly formalized in proper administrative proceedings, in order to avoid future challenges by oversight bodies.

The same applies when pricing a new service to be added to a contract already under way, where that item has no equivalent in the official reference price systems. After all, the same principles guiding the preparation of a budget to benchmark a tender apply to incorporating new amounts into an ongoing contract.

To bring greater legal certainty to this type of situation and give public managers and private parties involved in the contract a degree of confidence and reliability, the Federal Court of Accounts has been building and consolidating its case law with guidance on how such pricing – of items, services and works not compatible with the reference price systems – should take place.

Judgment 2401/2022 was recently published, in which the plenary of the Court of Accounts summarized and consolidated this guidance:

• formally record in the pricing case file the search parameters entered (keywords, period, specifications, etc.) with printouts of the web page and other documents, as well as the data relating to the survey, such as the person responsible for the survey, body consulted, tender number, seller’s name, means of consultation, date of the survey, website URL, supplier’s CNPJ (corporate taxpayer ID), quantity, amount, specification of the object and other payment and delivery conditions;
• in direct quotations from suppliers, only accept prices whose dates do not differ by more than one hundred and eighty days, that is, no direct supplier quotation should have a date difference of more than one hundred and eighty days compared to the others in a group of price surveys with suppliers in the same process;
• to obtain the result of the price survey, disregard unfeasible or excessively high prices, according to reasoned criteria described in the administrative proceedings;
• seek, in the market survey, a minimum of three quotations from different suppliers and, if it is not possible to obtain this number of quotations, prepare a detailed justification.

By following this set of steps, the integrity of the pricing procedure is ensured, public managers can be confident in their decision to contract at a price not included in the reference systems, greater confidence is brought to the contract entered into and, ultimately, the public treasury is protected.

Article originally published on Portal da Infra (in Portuguese), on 12.21.2022.