Law No. 14,133/2021 was approved, consolidating a new legal model for the Union, States, Federal District and Municipalities to carry out their contracts.
Although the new law is already in effect, there will be a two-year period during which political entities can choose between adopting the regime provided for in Law No. 14,133/2021, or using the legislation that governed the matter until then: Laws No. 8,666/1993 (Bidding Law), 10,520 (Auction Law), and 12,462/2011 (Differentiated Contracting Regime – RDC). After this two-year period, the use of Law 14,133/2021 will be mandatory.
In its text, the new law consolidated concepts contained in Normative Instruction No. 05 of 2017, of the Management Secretariat of the Ministry of Planning, Development and Management, among others, and in the legislation it will replace (Bidding Law; Auction Law; RDC). It also incorporated certain definitions found in the case law of the Federal Court of Auditors (TCU).
The new law brought several new features, including:
– The possibility of adopting alternative means for resolving disputes, such as conciliation, mediation, dispute resolution committee, and arbitration;
– Extension of contract terms, with the possibility of adopting duration periods of 5 years (continuous service and supply contracts), 10 years (contracts without investment that generates revenue, or in the efficiency contract that generates savings for the Public Administration), and 35 years (in contracts with investment);
– Five bidding modalities are established: competitive bidding, contest, auction, auction, and competitive dialogue. The “price quotation” and “invitation” modalities have been eliminated. Competitive dialogue, as the name suggests, will involve discussions between bidders under the guidance of the bidding public administrator, and is applicable to cases involving technological or technical innovation;
– The specific provision for the possibility of disregarding the legal personality, in cases of unlawful acts and patrimonial confusion;
– Introduction of new judging criteria, adding to the previous ones the biggest discount, the best technique or artistic content and the biggest economic return;
– The prediction of specific crimes for bids and administrative contracts; and
– Possibility of requiring surety insurance for the contracting of engineering works and services.
But the relevant questions arising from the application of the new law should arise with its practical application, in everyday life.
