by Giuseppe Giamundo Neto and Fernanda Leoni
The new Public Procurement and Administrative Contracts Law (Federal Law 14,133/2021 or NLLC), responding to a demand for legal certainty and in line with the views already expressed by legal advisory and oversight bodies, introduced clearer rules on pricing in contracts for engineering works and services, creating objective parameters both for pricing these projects and for controlling their adequacy and compatibility with market prices.
As a general rule, article 23 established that market prices will be assessed taking into account the amounts in public databases, also considering potential economies of scale and the particularities of the place where the object will be performed. This consolidates the use of official references as equivalent, or at least close, to market prices, with the necessary adaptation to the particularities of the project’s location.
Specifically for engineering works and services — whose rules will possibly be the subject of federal and subnational regulations — it was stipulated that the estimated value of the contract, plus the reference percentage of Indirect Costs and Profit (BDI) and the applicable Social Charges (ES), will be defined by certain parameters, whose order of choice is not optional, but subsidiary (article 23, §2).
The first of these parameters is based on unit costs less than or equal to the median of the corresponding item in the Reference Cost System for Works (Sicro), for transportation infrastructure works and services, or in the National System for Construction Costs and Indexes Survey (Sinapi), for other engineering works and services. This follows precisely what Federal Decree 7,983/2013 already provided, which sets the rules and criteria for preparing reference budgets for engineering works and services at the federal level, so that the NLLC adopts references long used in the infrastructure sector.
Although a pre-existing rule is maintained, the rules setting out subsidiary budgeting techniques for engineering works and services deserve attention, as they codify an important understanding of the Federal Court of Accounts which, since its initial provisions in budget rules, had already adopted the Sicro and Sinapi references as the rule, requiring managers to provide technical justification for using other budgeting assumptions [1].
The second parameter relies on the use of survey data published in specialized media, reference tables formally approved by the Federal Executive Branch and specialized or widely accessible websites. This is likewise a hypothesis that appeared in Decree 7,983/2013, with the difference that it is now clearer that it is a subsidiary mechanism, applicable to situations in which Sicro and Sinapi are inapplicable or cannot be adapted to the reality of the project [2].
The third parameter is new, authorizing comparison, for budgeting purposes, with similar contracts entered into by the Public Administration, in progress or completed within one year prior to the date of the price survey, using the corresponding price adjustment index. Note that Decree 7,983/2013 authorized consulting databases of similar works and services, but only for parametric budget analysis (article 17, §4, of that regulation, added in 2019).
Finally, the use of searches in the national database of electronic invoices is also authorized as a pricing parameter, in a format yet to be regulated. According to the new legislation, consulting these invoices will be one of the features of the National Public Procurement Portal (article 174, §3, item II, of the NLLC).
An important exception made by the law concerns contracts entered into by other federative entities that do not involve federal funds, in which case other cost systems will be accepted, reinforcing the autonomy and particularities of subnational entities. This opens room for the use of tables that are equally well established in the market, such as the table used by the São Paulo Municipal Department of Urban Infrastructure (Siurb Table) and by the Ceará State Department of Infrastructure (Seinfra Table).
These same pricing criteria will apply to cases of direct contracting; where they cannot be used, the contractor must prove in advance that its prices are consistent with those charged in similar contracts for objects of the same nature, by submitting invoices issued to other contracting parties within one year prior to the date of contracting by the Administration, or by other suitable means.
For contracts for engineering works and services under integrated or semi-integrated contracting regimes, in addition to using these parameters, a risk remuneration fee may be added. Furthermore, whenever necessary and permitted by the preliminary design, the price estimate will be based on a summary budget, benchmarked against Sicro or Sinapi, prepared using an expedited or parametric methodology, except for portions of the project not sufficiently detailed in the preliminary design, for which an approximate assessment based on other similar contracts may be used. Under these regimes, bidders’ proposals must have the same level of detail as the summary budget.
As can be seen, although the law does not bring many new features on the subject, largely incorporating provisions from scattered laws, sub-statutory rules and positions of the Courts of Accounts, the organization of the general parameters is welcome, as it preserves the autonomy of subnational entities to regulate the matter according to regional or local interests, without losing sight of some degree of unification for the sake of contracting security in terms of compatibility with market prices and their respective control.
[1] In this regard, see Judgments 2,056/2015, 719/2018 and 1,626/2022, all of the TCU Plenary.
[2] This is the case, for example, of port sector works, which face difficulties in adapting these references. This position was adopted by the Federal Court of Accounts in Judgment No. 2,754/2022-2nd Chamber, with Justice André Luís de Carvalho as reporting justice.
Article originally published on the ConJur portal (in Portuguese), on 11.29.2023.
