*Per Camila Cristina Murta
Striving for the adoption of more modern and agile guidelines, for the transparency, efficiency and speed of the bidding procedures, on 04/01/2021, the New Law on Tenders and Administrative Contracts - NLLC (Law No. producing its effects since its official publication.
However, the New Federal Law brought about a modulation of the effects of the validity allowing the concomitant coexistence, for 2 (two) years, of the old legal regimes[2] and the recently launched one.
The focus of this article is on the rules of item II, article 193 and article 191, which provide:
Art. 193 Repeal: (...)
item II – Law nº 8.666, of June 21, 1993, Law nº 10.520, of July 17, 2002, and arts. 1 to 47-A of Law No. 12,462, of August 4, 2011, after 2 (two) years of the official publication of this Law.
Art. 191. Until the expiry of the term referred to in item II of the caput of art. 193, the Administration may choose to bid or contract directly in accordance with this Law or in accordance with the laws mentioned in the aforementioned item, and the chosen option must be expressly indicated in the public notice or in the notice or instrument of direct contracting, the combined application being prohibited of this Law with those mentioned in the aforementioned item.
Single paragraph. In the hypothesis of the caput of this article, if the Administration chooses to bid in accordance with the laws mentioned in item II of the caput of art. 193 of this Law, the respective contract will be governed by the rules provided for therein throughout its term.
According to the rules transcribed above, two important conclusions can be drawn: First, the NLLC predicted that the old laws would be obsolete – VALIDITY RULE (art. 193). And second, it granted the Administration the option to choose between the old laws or the new bidding law – TRANSITION RULE (art. 191).
With regard to the rules of validity. In the sole paragraph of Article 191, it is clear that the effects of old laws are extended beyond their period of validity. Allowing, therefore, the Administration to choose to bid or contract directly observing the rules of Law nº 8.666/93, of Law nº 10.520/02, arts. 1 to 47-A of Law No. 12,462/11, with the contract resulting from this bidding being governed by these laws, and not by Law No. 14,133/2021, even after April 1, 2023.
Thus, it is crystal clear that from April 1, 2021 to March 31, 2023, Law No. 8666/93, Law No. 10520/02, Arts. 1 to 47-A of Law No. 12,462/11 and Law No. 14,133/2021, with the Public Administration having the option of choosing between previous legislation or the new law on bidding and contracts.
With regard to the transition rules, it is based on the possibility of choosing given to the Administration to carry out a bidding process or hire directly following the rules of Law No. 14,133/2021 or the old legislation.
The choice, by logical assumption, must be made in the internal phase of the bidding or direct contracting, that is, at the time of the instruction of the administrative process, and must be given expressly, either by Ordinance, or order of the competent authority of the Body.
In this period of two years, the opportunity opened up for the Public Administration: i) to regulate the themes set out in the NLLC; ii) train its public agents; iii) adapt operationally, technologically and structurally; iv) adjust its internal processes, especially with regard to public governance. As well as providing opportunities for suppliers to be able to contract with the public administration, observing the new rules of Law No. 14,133/2021 safely.
However, what we saw were postponements of operational measures, the lack of complete regulation of the Law, the birth of many doubts and discussions about the execution of legal provisions and, in particular, issues related to the rules of validity and transition.
In order to settle the doubts raised by the Public Bodies, the Secretariat for Management and Innovation (SGI)[3] of the Ministry of Management and Innovation in Public Services-(MGI) established, through Ordinance SEGES nº 720, of March 15 of 2023, that the deadline for publication of the public notice based on laws nº 8.666/93, nº 10.520/02 and nº 12.462/11 would be April 1, 2024, which must be expressly stated until March 31, 2023, in the preparatory phase of the bidding, the option for the rules that will be revoked, as well as the authorization by the competent authority.
However, the Federal Court of Accounts (TCU) ruled, on 03/22/2023, on Ordinance 720/2023 issuing Judgment 507/2023 - TC 000.586/2023-4[4] giving a new interpretation to the rule of transition and setting until 12/31/2023 for the publication of bidding notices and extracts of ratifications of direct contracting.
The State of São Paulo, in turn, issued a statement by publishing Decree 67.570/2023[5] which dealt with the transitional time frame of the legal regimes for public procurement within the scope of State Public Administration, direct and autarchic, setting up to the day December 29, 2023 for the publication in the Official Gazette of the State of the bidding notices and extracts from the ratifications of the direct contract. And other States likewise acted in the same way.
On 03/01/2023, in an extra edition of the Official Gazette, Provisional Measure 1,167/2023 was published, which extends the validity of the old laws until December 30, 2023. With such a measure, the Union, State and Municipalities will be able to publish their public notices in the dictates of the old laws until 12/29/2023, thus unifying all legislation on the subject.
Therefore, the MP grants an 8-month survival of Law nº 8.666/93, Law nº 10.520/02, and part of Law nº 12.462/11 so that, in this additional period of time, the legal transition is, in fact, exercised ignored since 2021 and we can take advantage of the commands established in Law 14.133/2021.
*Camila Cristina Murta, leader of the ABES Public Procurement Working Group
***
References:
[1] Law 14.1333/2021 https://www.planalto.gov.br/ccivil_03/_ato2019-2022/2021/lei/l14133.htm
[2] Law nº 8.666/93, of Law nº 10.520/02, arts. 1 to 47-A of Law No. 12,462/11
[3] https://www.gov.br/agu/pt-br/comunicacao/noticias/fique-por-dentro-das-regras-de-transicao-para-uso-da-nova-lei-de-licitacoes accessed on 03/23/2023
[4] https://zenite.blog.br/wp-content/uploads/2023/03/acordao-no-507-2023-plenario.pdf accessed on 03/24/2023
[5] https://www.al.sp.gov.br/repositorio/legislacao/decreto/2023/decreto-67570-15.03.2023.html accessed on 03/23/2023
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