*By Camila Cristina Murta
The New Bidding and Contracts Law (NLLC) promoted innovations in the protection of sanctions applicable by the Public Administration to bidders and contractors, thus inaugurating a new approach in sanctioning discipline in public procurement, in which objective criteria and weighted methods are assumed for the imposition of sanctions.
First, it should be noted that the NLLC dealt with sanctioning administrative law, bringing guarantees bidders and contractors, on three occasions, namely: arts. 151, 156, §1st, 169, §3rd, I, which, in short, guarantee 1) the possibility of alternative means of dispute resolution in place of legal disputes; 2) mandatory application of dosimetry in the investigation of administrative infractions; 3) limitation of sanctions for facts covered by the principle of insignificance.
The sanctioning administrative law is the submission of the ius puniendi state to certain formal and material principles immanent to the Democratic State of Law itself, such as due legal process adjective (full defense and contradictory) and substantive (proportionality and reasonableness), legal certainty, legality, typicality, presumption of innocence , prescriptibility and motivation of sanctioning decisions[1]', striving to protect the public interest.
Another noteworthy point is that the aforementioned guarantees are of immediate application since the publication of Law 14,133, on 04/01/2021, even for issues covered by Law 8,666/93, since the procedural guarantees for individuals in administrative proceedings follow the rules of the Code of Civil Procedure.
O article 151 inaugurates the institutes of conciliation, mediation, dispute resolution committee and arbitration, for example, opening space for new extrajudicial methods of conflict resolution.
Such alternative means reinforce legal certainty and speed in the resolution of conflicts arising from disputes between the public entity and the private entity, obeying the principle of publicity and relating to the available property rights, such as issues related to the reestablishment of the economic and financial balance of the contract, the performance of contractual obligations by any of the parties and the calculation of indemnities.
It is evident, therefore, that the innovation brought by Law 14.133/2021 will allow for greater speed and effectiveness in the resolution of disputes between the Public Administration and the private sector. Bringing, therefore, a new guarantee to the individual, making it possible to obtain a solution in a short time, compared to the Judiciary and to obtain a qualified and targeted analysis, which will certainly bring greater advantages for both parties.
At the article 156 § 1 of the NLLC, some aspects must be considered in the application of sanctions, including: the nature and seriousness of the infraction committed; the peculiarities of the specific case; aggravating or mitigating circumstances; the damages that come from it to the Public Administration; the implementation or improvement of the integrity program, in accordance with the rules and guidelines of the control bodies.
The article explains the legal duty to comply with the principles of proportionality and reasonableness, giving the individual a greater degree of predictability. In addition to subsidizing Article 22 of the LINDB[2], which provides for the consideration of the nature and seriousness of the offense committed, the damages suffered by the Public Administration, the aggravating or mitigating circumstances and the background of the agent.
Such forecasts greatly reduce administrative discretion. To apply the sanction, the Administration must evaluate the objective and subjective conditions, exercising the balance between the conduct produced and the incident sanction.
If the Public Administration does not comply with such prerogatives when applying the sanction, it may be annulled by the Judiciary, since the disciplinary power of the Administration is strictly subject to the principle of legality and the constitutional guarantees established in favor of the individual.
At the article 169 § 3, I of Law 14,133/2021, it is recommended that, in the event of errors of a formal nature, remediation is allowed, in conjunction with measures that prevent further errors of the same nature.
Formal impropriety configures the positivization of the principle of insignificance, a typically penal institute, within the scope of bidding processes and contracts, that is, the conducts included in the field of formal impropriety, given their atypical insignificant harmfulness, have the power to remove the material typicality of the conduct and therefore excluded from administrative punishment.
It is clear that this is not a cult of impunity or an incentive to formal infractions, but a legal instrument that not only guarantees the reasonableness and adequacy of the sanction eventually imposed on the perpetrated conduct, but also allows for the maximization of the state structure so that punish the conducts that are most harmful to the Administration and the Treasury.
Therefore, the exercise of the sanctioning administrative right must have the principle of legality as a corollary, paying attention to the elements of typicality, harmfulness, antilegality and culpability. Failure to verify these elements not only constitutes an infringement of the principle of legal certainty, but also invalidates the administrative process.
[1] OSÓRIO, Fabio Medina. Sanctioning administrative law. 7. ed. rev. and current. São Paulo: Thomson Reuters Brazil, 2020, pp. 420 and ss. and article conjure Link
[2] Decree-Law 2 of 5 nº 4.657, of September 4, 1942 (Law of Introduction to the Norms of Brazilian Law)
*Camila Cristina Murta is leader of the Public Procurement Working Group of the Brazilian Association of Software Companies (ABES). Lawyer specializing in Tenders and Contracts, Public and Technological Governance in Public Administration, Camila Cristina Murta works as Specialist in Procurement and Strategies in the Public Sector at Amazon Web Services (AWS)
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