Roberta Cardoso dos Santos
Regarding the completion of administrative contracts, Law No. 8,666/93 established two distinct moments for the Public Administration to accept the contracted object, separating them into provisional and final acceptance, as set out in its article 73:
Art. 73. Once the contract has been performed, its object shall be accepted:
I – in the case of works and services:
- a) provisionally, by the person responsible for monitoring and inspecting it, through a detailed report signed by the parties within 15 (fifteen) days of the contractor’s written notice;
- b) definitively, by a public servant or committee designated by the competent authority, through a detailed report signed by the parties, after the observation period has elapsed, or an inspection proving that the object conforms to the contract terms, in compliance with art. 69 of this Law;
II – in the case of purchases or equipment rental:
- a) provisionally, for the purpose of subsequently verifying that the material conforms to the specification;
- b) definitively, after verification of the quality and quantity of the material and consequent acceptance.
- 1 In the case of acquisition of large-value equipment, acceptance shall be made through a detailed report and, in other cases, through a receipt.
Provisional acceptance consists of the mere transfer of possession of the goods or of the results of the service to the Administration. It does not fully release the private party, nor does it mean that the Administration acknowledges that the object is good or that the obligation was performed correctly. It does not constitute a discharge for the private party. From provisional acceptance onwards, the Administration must examine the object to verify that it meets the requirements of the law, the contract and good technical practice.
It should therefore be clarified that provisional acceptance occurs with the delivery of the object to the Public Administration. At this stage, the Administration will test and examine the object, but this does not mean the contract has ended. Indeed, provisional delivery releases the private party from risks as of the transfer of possession. If the item is lost or deteriorates due to an event not attributable to the private party, the Administration will bear the consequences.
In addition, in the case of works and services, to effect provisional delivery the contractor must notify the Administration that the item is ready to be provisionally accepted. Under item I, subparagraph “a”, the Administration will have fifteen days from this notice to take possession of the item or receive the service. This period may be excessive, and the contract may shorten it according to the nature of the obligation.
As for the case provided for in art. 73, II, “a” – purchases or equipment rental – the items must be delivered by the private party in accordance with the contract terms. According to
Marçal Justen Filho:
If the contract provides for delivery of the item at the private party’s premises, it must notify the Administration that the goods are available. The most common situation is for the private party to deliver the item to specified locations. It should be noted that art. 15, § 8 requires that the acceptance of goods worth more than the threshold for the invitation tender modality be carried out by a committee of at least three members2.
Finally, this stage will be documented; in the interest of both parties, there must be a detailed report listing the objects received. In this way, subsequent loss of or damage to the goods will not cause disputes3. In other words, this documentation certifies that the object or service is in the custody of the administration.
FINAL ACCEPTANCE
Once the observation period established by law has elapsed, the Public Administration may proceed with the final acceptance of the contracted object, defined as follows by Marçal Justen Filho
After the contract object has been provisionally accepted, the Administration will carry out the necessary examinations, tests and checks. If it finds a defect, the item or service will be rejected and returned to the private party in the condition it is in. The specification of the examinations and tests will depend on the nature of the object. In the case of works and services, the Administration must designate a public servant or committee of public servants to carry out the inspection. Depending on the nature of the object, the servants may be required to have certain professional or technical qualifications. In the case of purchases, the technical specifications, quantities, etc. must be examined.
As the author explains, final acceptance is the administrative act performed by the contract manager that formalizes the certifications of the technical and administrative inspectors for the purposes of settlement and payment, based on an analysis of the reports and all the documentation submitted by the inspectors.
On the technical analysis of the object or services, according to Marçal5:
The adversarial principle requires that the private party be heard and follow the examinations and checks. In this regard, the contract usually sets out the rules to be followed. It usually enshrines the principles adopted in quality control. If it concludes that the object is defective, the Administration will reject it and notify the private party. The latter will have the right to access the reports and documents produced by the Administration. It may request that tests already performed be repeated and that others be carried out. If the rejection decision is upheld, the private party must take the appropriate measures. If possible, it must repair the defects. Otherwise, it must replace the item or perform the obligation again.
However, this verification cannot force the private party to wait indefinitely for the administration’s decision. The call for bids must establish a maximum period for final acceptance, as provided for in art. 73, §3; accordingly, if the Administration remains inactive after the necessary periods have elapsed, its acceptance is presumed.
On the consequences of final acceptance, the São Paulo Court of Appeals has taken the following position:
SUMMARY: APPEAL. ACTION TO ANNUL AN ADMINISTRATIVE FINE. Municipality of Paraibuna. Claim seeking annulment of an administrative fine for late delivery of public works. Recognition of five-year statute of limitations. Documents in the case file show that, although the administrative infraction occurred in May 2013, the Municipality only imposed the penalty in mid-2019, with no cause for suspension or interruption of the administrative proceeding. Final delivery of the works does not change the start of the limitation period. Application of art. 1 of Decree-Law No. 20,910/32. Judgment upheld. Appeal dismissed. The Final Acceptance Report for the gymnasium proves that the administrative contract was performed on 02/23/2015, according to the document on p. 37 and art. 73, item I, “b” of Law No. 8,666/93. Incidentally, the final acceptance report for public works (art. 73, I, “b”, Procurement Law) in no way purges the delay in performing the contract. This administrative act is limited, absent any reservation, to declaring that the works were accepted by the Public Administration after the “inspection proving that the object conforms to the contract terms”. With this report issued without reservations, the Public Administration would only be prevented from disputing whether the works conform to what was contracted. Moreover, this report is essential even to set the end date of the delay, in order to avoid disputes over the date the works were delivered after the contractual deadline.
(TJSP; Civil Appeal 1000426-07.2020.8.26.0418; Reporting Judge: Bandeira Lins; Court: 8th Public Law Chamber; Paraibuna Court – Single Court; Judgment Date: 03/21/2022; Registration Date: 03/21/2022)
Originally published by Jus.com (in Portuguese).
