The new procurement law authorized requiring a letter of joint liability to ensure contract performance where the bidder is not the direct manufacturer of the goods, but its reseller or distributor.

As is well known, the new procurement law, although not considered disruptive, introduces several innovations compared with the previous legislation and consolidates rules that were previously scattered, such as those in the “auction law” (federal law 10,520/02), the “Differentiated Procurement Regime” (federal law 12,462/11) and oversight case law. This article offers some considerations on how the new law framed the requirement of a letter of joint liability and on the (still) undefined limits of that joint liability.

Conceptually, a letter of joint liability is a document in the form of a declaration, signed by the manufacturer of goods in favor of a bidder that wishes to supply its product to the Public Administration¹. From its definition, it follows that the letter of joint liability is used in procurement tenders and seeks to establish some sharing of responsibility for the supply made to the government.

Although it has not been possible to identify exactly where and when this requirement arose, the fact is that the letter of joint liability was required in many tenders long before any regulation. The courts of auditors frequently reviewed tender notices in which the letter of joint liability was presented as a restrictive requirement, and as a result an understanding developed that, in addition to being exceptional, this kind of request should apply only to the winning bidder and should not constitute a qualification requirement².

With the enactment of federal law 12,462/11, which established the RDC – Differentiated Public Procurement Regime, the requirement of a letter of joint liability was codified, allowing the manager, in tenders for the acquisition of goods, to “request, with reasons, a letter of joint liability issued by the manufacturer, ensuring contract performance, in the case of a reseller or distributor bidder” (art. 7, item IV of law 12,462/11).

As can be seen, an important aspect of this regulation, which incorporated the guidance of the courts of auditors’ case law, was the explicit requirement that the demand be reasoned, showing that requesting a letter of joint liability in tender notices could not be treated as a routine requirement and that the manager was responsible for justifying the need for it.

Federal Law No. 14,133/2021 (NLLC – the “new procurement law”) followed similar wording, establishing in its art. 41, item IV that, on an exceptional basis, the Public Administration may, in purchases, “request, with reasons, a letter of joint liability issued by the manufacturer, ensuring contract performance, in the case of a reseller or distributor bidder”.

Therefore, in line with administrative practices already established before the law was enacted, the NLLC reinforced the exceptional nature of the letter of joint liability, authorizing it to be required, with reasons, in order to ensure contract performance where the bidder is not the direct manufacturer of the goods, but its reseller or distributor.

However, one point that the legislation does not clarify, and which raises a number of practical questions, concerns the limits of the liability established by this document, especially in light of the legal maxim that “joint and several liability is not presumed; it results from the law or the will of the parties” (art. 265 of the Civil Code). In this sense, since the letter of joint liability is a requirement imposed on the bidder — and therefore involuntary — and the law has not set the limits of this liability, understanding its scope seems important for protecting the parties (administration and contractor), especially in cases of contractual default.

In our view, the Public Administration’s interest in this kind of requirement is precisely to establish joint liability between manufacturer and bidder for contract performance, so that there is no excuse for product shortages on the grounds that this would be a manufacturing problem not attributable to the reseller or distributor. In practice, however, letters of joint liability are worded very simply and do not usually give such a broad scope to this joint liability, unless the templates in the tender notice are drafted with that breadth.

But if the letter of joint liability does not ensure broad liability, what then is its scope? In our view, there are two aspects to this joint liability. The first concerns guaranteeing the quality of the products offered to the government, preventing the loss of the main attributes of the product the Administration is interested in when it makes the purchase; the second concerns reinforcing the manufacturer’s commitment to honoring its contractual relationship with resellers and distributors, which does not bind it to the public contract.

On the first aspect, there is a kind of extension of the joint liability that already exists between manufacturer and suppliers under civil law, by virtue of the provisions of the Consumer Protection Code (CDC), so that it also reaches the Public Administration. As Rafael Oliveira points out, the State, as a rule, is not considered a consumer and would therefore not be naturally protected against defects in the product purchased, so the letter of joint liability fills the role of arts. 12, 18, 19 and 25 of the CDC³. In these terms, the joint liability of manufacturer and reseller/distributor toward the administration is aimed at guaranteeing the quality of the product sold⁴.

Regarding the second aspect, the position adopted by the São Paulo State Court of Auditors seems appropriate, to the effect that “the letter of joint liability does not mean that the manufacturer becomes jointly bound to perform the obligation”, functioning, in fact, as a declaration by the manufacturer “that it is aware of the tender and undertakes to do its part so that the bidder is able to fulfill the contractual obligation”⁵. The manufacturer therefore commits to performing the contract it entered into with its distributor or reseller, the latter being the party responsible to the contracting administration.

Thus, the limit of the liability assumed through the letter of joint liability will be defined by the conditions agreed between manufacturer and distributor/reseller, and it is not reasonable for a mere declaration to expand the obligations of a previously established contract⁶, especially because this would almost amount to bringing a third party — the Public Administration — into the relationship, if it were held that, upon the bidder’s breach of contract, the manufacturer would be liable for that object (the supply).

In light of the points discussed, we believe that the requirement of a letter of joint liability, beyond the established legal requirements, must strike a balance between the need to ensure the quality and quantity of the products acquired by the Public Administration and the protection of bidders’ rights. It is not reasonable to expand liabilities not expressly assumed, nor to bind third parties to relationships in which they do not directly take part — which in no way reduces the government’s guarantees, as it will still have a wide range of tools available to compel the contractor to answer