Tenders involving advertising services in Public Administration present particularities that require specific in-depth analysis, which has been addressed in other articles published in this specialized doctrine space.
As an example of the topic in focus, there is recurrent confusion surrounding the etymological interpretation of the explicit prohibition of the non-requirement of bidding for advertising and publicity services in Law No. 14,133/2021 [1] , particularly in article 74, paragraph III, which reiterates the already known wording of article 25, paragraph II, of Law No. 8,666/1993 [2] .
It is therefore important to note that both legislations — the repealed and the current one — prohibit the non-requirement of bidding when it comes to advertising and publicity services, attributing japan telegram data correlation, in the wording that accompanies the article, to specialized technical services of a predominantly intellectual nature. This prohibition, at first glance, refers to the implicit understanding that these services — advertising and publicity — refer specifically to those provided by advertising agencies.
Such interpretation, aligned with the emphasis on the attributes of technicality and intellectuality (read creativity, intrinsically), is supported by specific legislation, embodied in Law No. 12,232/2010 [3] , which stipulates that the contracting of these services is conditioned, among other aspects, on the criteria of judgment of “technique and price” or “best technique”, aligning itself, in view of this, with the procedure established for the competitive bidding modality, especially when the provisions of article 5 of Law No. 12,232/2010 are combined with article 6, item XXXVIII, and article 29, caput and sole paragraph of Law No. 14,133/2021.
This is, for illustrative purposes, the understanding regulated and settled by article 7 of IN SECOM/PR nº 1/2023 [4] .
Although the implicit interpretations above, widely accepted by specialized doctrine, are not mistaken, they require further investigation. It is important to highlight that such investigation is supported by the problematic core surrounding the publication of Law No. 12,232/2010, which was the subject of repeated discussions due to political issues related to advertising contracts by the Public Administration, as can be seen in the TCU judgment reproduced below:
4. As already noted by the rapporteur of TC Process 019.444/2005-2, Justice Marcos Vilaça, “there is no public contract more embarrassing than that which refers to the provision of advertising services” . In fact, this is a matter that is still in an evolutionary phase in order to arrive at the solution that best meets the public purpose without prejudice to the discretion of the public administrator and, obviously, without losing sight of the basic principles that guide administrative activity, in particular, legality, efficiency and economy. (Judgment No. 1688/2012, Plenary, rel. Justice Aroldo Cedraz)
On this subject, Professor Marçal Justen Filho's [5] comments on Law No. 12,232/2010 are timely, and the exposition supports the line of reasoning presented here:
“It is unquestionable that advertising services fall within the concept of specialized professional technical service. The prohibition on the application of the non-competitive bidding regime [for advertising services] derives from a political decision (…)” (our emphasis)
Despite the interpretations (which are correct, it is worth highlighting) to the effect that the non-requirement for bidding does not apply to the cases of contracting advertising services, there is, in a more conceptual and, obviously, etymological sense, the need to clarify the scope and concept of what constitutes an “advertising service” and what constitutes a “publicity service”, as well as their possible differences, if any.
Objectively, the question is: Are advertising services equivalent to dissemination services? Or would advertising and dissemination services be interrelated but not equivalent terms, both subject to a bidding process in the exact terms of Law No. 12,232/2010?
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