Despite timid innovation, the new Procurement Law improves instruments originating in the previous law
By Fernanda Leoni and Roberta Santos Cardoso
Incorporating part of the rules already set out in the previous legislation, Law 14,133/2021 (the new Procurement Law), consistently with its governing principles, reorganized the establishment of the so-called preference margin in tenders, reinforcing the inducing role of this instrument in promoting public policies for the development of the domestic market and sustainability.
A first aspect improved by the new law was the separation between tie-breaking criteria and the preference margin itself. Under Law 8,666/1993 both topics were governed by the same provision (article 3), causing some conceptual confusion. In the new legislation, the preference margin is governed by article 26 — currently regulated by Decree 11,890/2024 at the federal level — while the tie-breaking criteria are set out in article 60.
Regarding tie-breaking criteria, in addition to common criteria, article 60 establishes mechanisms that bring out this inducing role of procurement right at the first tie-breaking stage, establishing gender equity policies in the workplace and the existence of an integrity program as factors for preferring one bidder over its competitors.
If the tie still persists, preference is given, successively, to the bidder from the same level of the federation as the contracting authority — an important regionalization instrument — to Brazilian companies, to companies investing in technology research and development in Brazil — both mechanisms for strengthening domestic capital — and to companies that prove practices to mitigate environmental impacts — in favor of sustainable development.
In addition, the law expressly ensures that these guarantees do not affect the preferences held by micro and small businesses under the applicable legislation, reinforcing the commitment to economic development.
As for preference margins, the law authorizes the manager, at their discretion, to favor contracting domestic manufactured goods and services that meet Brazilian technical standards, and recycled, recyclable or biodegradable goods.
The innovation lies in the latter preference, consistent both with the objective of encouraging innovation and sustainable national development, set out in article 11, item IV of the law, and with the important commitments made by the country under various international development agendas.
This preference, justified in advance in the tender process — which in the case of domestic manufactured goods and services is not optional but a legal obligation — takes the form of a margin of up to 10% of the price offered compared with other bidders.
This means that, in the price ranking, a bidder with prices up to 10% higher than the best-placed bidder may still be ranked first if it has a characteristic entitling it to such preference. The best bid, in this case, combines the lowest price with a public interest purpose secured by the preference (national development, sustainability, etc.).
Specifically for domestic manufactured goods and services resulting from technological development and innovation in Brazil, this preference margin may reach up to 20%.
Despite the legal mandate requiring regulation of which goods and services would qualify, Decree 11,890/2024 did not provide very precise provisions on the subject, merely regulating the federal powers to make this definition, implying infra-legal regulation, despite what the Procurement Law establishes.
Also interesting is the provision allowing the preference margin to be extended to manufactured goods and services originating in States Parties to the Southern Common Market (Mercosur), provided there is reciprocity with the country under an international agreement approved by the National Congress and ratified by the President of the Republic (article 26, §1, item III). This is an important instrument of integration among the countries of the global south, promoting national development more broadly, from the inside out.
It can therefore be seen that the current legislation, despite timid innovation in creating new instruments, improves those originating in the previous law, reorganizes the topics and strengthens the promotion of government policies through the use of procurement also for its inducing or social purpose. In the medium and long term, it remains to be seen whether these preferences are actually used and whether they achieve the objectives set for them.
FERNANDA LEONI – PhD candidate and Master in Public Policy from UFABC, specialist in Public Law from Escola Paulista da Magistratura, Bachelor of Laws from PUC-SP and lawyer at Giamundo Neto Advogados Associados
ROBERTA SANTOS CARDOSO – Law student at Universidade Presbiteriana Mackenzie and intern at Giamundo Neto Advogados Associados
