By Marília Bassi

The price registration system underwent profound changes with the enactment of Law No. 14,133/2021. With little regulation under Law No. 8,666/93, it was expressly provided for as an auxiliary procedure for tenders and contracts in the new procurement law (article 78, IV), with specific rules, requirements and regulation (article 82).

As is well known, this system aims to register prices for future purchases by the public administration which, although not obliged to contract the registered items and prices, binds suppliers to the terms, quantities and prices set out in the records resulting from the tender.

As a result, the price registration record was also better regulated in the new Procurement Law, with a 12-month term and the possibility of renewal for an equal period, provided that the price remains advantageous (article 84).

With the regulation of the new price registration system, and with the controversy over the document’s term resolved, federative entities and suppliers began to face questions about the possibility of renewing the quantities registered in the records, within the term, given the authorization to extend the record’s term for another 12 months.i

This is because article 12 of the revoked Decree No. 7,892/2013, which regulated article 15 of Federal Law No. 8,666/93 and was used by several federative entities to guide contracting through price registration, expressly prohibited any increase in the quantities set in the price registration record, including the 25% increase provided for in § 1 of article 65 of the same law.

However, given the changes introduced by Law No. 14,133/2021, and with the possibility of renewing the initially registered quantities upon an extension of the term once again open to interpretation, some federative entities began to regulate the matter internally.

This is the case, for example, of the municipality of São Paulo, which issued Decree No. 62,100/2022, authorizing the renewal of the quantities estimated in the price registration record in proportion to the extension period (§2 of article 99).

Along the same lines, the state of Paraná issued Decree No. 10,086/2022, which regulated Federal Law No. 14,133/2021 in the state and also authorized the renewal of registered quantities in cases of extension of the record’s initial term, limiting the renewal of each item to the originally registered quantity (§2 of article 299).

Given the room for interpretation of the limits of the extension authorized by article 84 of Law No. 14,133, and considering the issuance of different regulations on the matter, a scenario of real legal uncertainty arose in the contracts entered into by public entities.

On the one hand, the contracting bodies’ choice to renew the quantities allowed the continued supply and purchase of the registered items with reduced costs and greater process efficiency, not only through the mere updating of amounts, where applicable, but also because it dispensed with a new tender procedure and subsequent contracting.

On the other hand, suppliers feared external oversight of the contracts and the possibility that the renewal and continued supply might be deemed irregular, given the absence of express legal authorization.

Statement 42 and AGU requirements

It was with the aim of guiding and standardizing the interpretation of the issue that the Federal Justice Council approved, in August 2023, at the 2nd Symposium on Procurement and Contracts, Statement 42, as follows: “If the term of the price registration record is extended, subject to the conditions set out in art. 84 of Law No. 14,133/2021, the registered quantities may be renewed, and the matter must be addressed in the contracting planning phase and provided for in the call for bids”.

In other words, according to the statement, in addition to proving that the registered prices remain advantageous, the extension would be conditional on the possibility of renewal being provided for in the contracting planning phase and in the call for bids governing the tender that gave rise to the price registration record.

Similarly, the Office of the Attorney General (AGU) began addressing the issue in 2024, through the Federal Government Legal Advisory Office (CGU), with the aim of guiding other legal bodies in reviewing cases and preparing opinions on contracts entered into by the Federal Government.

After consulting the AGU’s internal bodies, and based on the interpretation of articles 5, 40, caput, and 84 of Law 14,133, as well as Decree No. 11,462/2023, Opinion No. 00075/2024/Decor/CGU/AGU was approved, finally recognizing the legal possibility of renewing the initially registered quantity when the term of the price registration record is extended, with the following summary:

“SUMMARY: PROCUREMENT. PRICE REGISTRATION RECORD. POSSIBILITY OF RENEWING THE REGISTERED QUANTITY IN THE EVENT OF EXTENSION OF THE PRICE REGISTRATION RECORD. PLANNING PRINCIPLE. ANNUALITY. DUTY OF TRANSPARENCY. REQUIREMENTS. I – The quantity originally registered may be renewed if the term of the Price Registration Record (ARP) is extended, provided that it is proven that the price remains advantageous, that there is express provision in the call for bids and in the price registration record, that the matter was addressed in the contracting planning phase and that the extension of the price registration record is executed by means of an amendment within its term.”

The Office of the Attorney General, in turn, supplementing the guidance in CJF Statement 42, made the renewal of quantities subject to the following requirements: (1) proof that the price remains advantageous; (2) express provision in the call for bids and in the price registration record; (3) the matter having been addressed in the contracting planning phase; and (4) the extension of the price registration record being executed through an amendment within its term.

Therefore, with the standardization of the understanding, particularly following the approval of Opinion No. 00075/2024/Decor/CGU/AGU by the Office of the Attorney General, the guidance on the legal possibility of renewing the quantities in the price registration record when its term is extended, under article 84 of Federal Law No. 14,133/2021, has been settled.

However, some requirements must still be observed by contracting bodies and suppliers. On the public administration side, as seen above, the possibility of renewing the quantities must be addressed during the contracting planning phase, together with an express provision in the tender notice and in the respective price registration record.

Other formalities must also be observed, such as proof that the registered prices remain advantageous (article 84), which may be done through price research, and the execution of the extension of the price registration record through an amendment within its term, that is, within the initial 12 months.

For the avoidance of doubt, it should also be noted that contracts arising from price registration records are subject to independent rules and legal regimes, including specific rules on term extension, contract amendments and the possibility of increases and reductions, as provided for in article 89 et seq. of Law No. 14,133/2021.

In any case, and even though the opinion approved by the AGU does not expressly bind all other federative entities, the recent administrative guidance on the matter gives contractors certainty when the term of the price registration record is extended and its quantities renewed, particularly when compliance with the requirements and conditions mentioned above is demonstrated, established in line with the principles of legal certainty, advantageousness, planning and the public interest involved in contracting and in the continuity of supplies and services.