Since April 1, 2021, the new Bidding Law (14.133/21), valid for the direct Public Administration, autarchic and foundational, at its federal, state, municipal and district levels – public companies, public companies, mixed-capital companies and state-owned companies governed by Law 13,303/16 –, coexists with Laws 8,666/93 (Bidding Law), 10,520/02 (Trading Law) and 12,462/11 (Differentiated Hiring Regime Law, art. 1 to 47-A), but provides, in its art. 193, II, that the three aforementioned Laws will be revoked after two years of their publication[1].

Thus, as of April 1, 2023, new bidding processes and direct public contracts will only be possible based on the new legislation.

The transitional phase, provided for in arts. 190 and 191, caput of said Law, was necessary mainly due to the need to regulate normative acts[2], and, during this two-year period, it was and is possible to choose to bid or contract in accordance with the new Law or based on old legislation, provided that the chosen option is expressly indicated in the public notice, notice or direct contracting instrument, and the combined application of legislation is prohibited.

However, it is worth highlighting the exception applicable to municipalities with up to twenty thousand inhabitants (art. 176), for which a period of up to 6 (six) years was granted for the requirements established in arts. 7 and 8 of the new Law – related to the characteristics of the public agents appointed to conduct bidding processes, the segregation of duties among agents, the obligation to carry out electronic bidding processes and the rules relating to disclosure on the official website.

This transition phase is similar to that adopted by the State-Owned Companies Law (Law 13.303/16, art. 91), which granted a period of 24 (twenty-four) months for state-owned companies existing until the date of its publication to adapt to the new Law. For this reason, there are some parallels that can be drawn with the transition period in Law 14.133/21. For example, analyzing the Law of State-Owned Companies, the Federal Court of Accounts, in Judgment 2279/19, defined that, when the internal phase of the bidding has started on a date before the transition limit established by the Law, but the notice has been published at a later date, the event must follow the provisions of the new Law. That is, the understanding was signed that the initial time frame for the applicability of the new Law should be the publication of the public notice[3].

In view of this, the main changes brought about by the New Procurement Law are briefly discussed. In general terms, the new Law adds norms already present in the previous legislation, but previously scattered among Laws 8666/93, 10520/02 and 12462/11; consolidates understandings established in the jurisprudence of the Courts of Auditors; in addition to bringing news, which seek to modernize and ensure agility and efficiency to the bids.

Article 147 of the New Law, for example, expressly absorbed the reiterated understanding of the Federal Court of Accounts[4] that the annulment of bids and their respective contracts, even if tainted with incurable illegalities, can only be proclaimed after the evaluation of several aspects expressly listed by the Law (items I to XI), as of an economic and social nature. And, if the annulment does not serve the public interest, the contract cannot be annulled, except for the solution of irregularities through compensation for damages and determination of responsibility with application of the applicable penalties (sole paragraph).

In addition, the new Law expressly regulates the applicable alternative methods of conflict prevention and resolution, notably conciliation, mediation, the dispute resolution committee and arbitration (arts. 151 to 154), and establishes that the bids will be, as a rule, carried out electronically (art. 17, §2). Other relevant novelties concern (i) the extinction and creation of bidding modalities (art. 28), with the extinction of the Price Survey and the Letter of Invitation and the creation of the Competitive Dialogue[5]; (ii) the role of insurers who, in cases of contractual default, may be responsible for completing the contracted object (art. 102); and (iii) the alteration of cases of exemption from bidding (art. 75).

Finally, it is important to remember that contracts signed before the new Law came into force, that is, before April 1, 2021, will continue to be governed in accordance with the rules previously provided for in the Bidding Laws (8.666/93), of the Pregão ( 10,520/02) and the Differentiated Hiring Regime (12,462/11), even if revoked.

As can be seen, this is an important legislative amendment, which, as of April of this year, will bring new rules to be followed in tenders initiated since that date.

[1] Except for the criminal provisions of Law 8.666/93, which were immediately revoked (Law 14.133/21, art. 193, I).

[2] According to information available on the Federal Government Portal, by 2/9/2023, 35 ordinatory acts had been published and many others are in the process of preparation or public consultation. Available at: https://www.gov.br/compras/pt-br/nllc.

[3] “Public companies and government-controlled companies must apply Law 13.303/16 (State-Owned Companies Law) to bids with public notices pending publication, even if the internal phase of the bidding process has started on a date prior to the limit established in art. . 91 of the aforementioned law” (Federal Audit Court, Plenary, Judgment No. 2279/2019, Process No. TC 036.542/2018-0).

[4] For example: Judgment 2075/2021-TCU-Plenary and 1524/2013-TCU-Plenary.

[5] Modality already present in public service concessions (Law 8987/95) and public-private partnerships (Law 11079/2004).