To begin with, it is essential to point out that members of the Autonomous Social Service are not subject to the guidelines of the now defunct Law No. 8,666/1993, nor to the provisions of the new Law No. 14,133/2021. As is known, the S System has a legal personality under private law and subsists through budgetary allocations or parafiscal contributions. They are, therefore, parastatal entities, collaborators of the Public Power, and, although formally recognized by the State, they are not included in the sphere of direct or indirect Public Administration.
That said, we had some surprises in the recent training we provided, whose thematic focuses were on bidding for advertising services, as recommended by IN SECOM/PR No. 1/2023, regulating the topic in light of the new Law No. 14,133/2021.
This is because during the classes, we came across a significant participation of representatives from the S System.
When we asked them why they joined the laos telegram data group, we were surprised by a desire, almost veiled by a “request for help”: they were there looking for content that would allow them to return to their entities, guiding them in the search for regulations inherent to the matter, taking into account the significant amounts involved in these contracts and the lack of a specific approach to the bidding process for advertising, communication and promotional marketing services in the current Regulations of the S System.
As teachers, we welcome our colleagues and seek to discuss solutions to the various challenges they face, harmonizing interaction with other participants from the Public Administration. From there, we emerge with a mission: to continue the dialogue on the topic, both with students who present us with recurring questions about the legislation applicable to public bodies and entities, and with our esteemed colleagues from Sistema S.
This is the primary reason that leads us to this moment of reflection and improvement.
It is worth noting that Law No. 14,133/2021, although new, bears the mark of time, having been born, paradoxically, as an “old law”. This is an inescapable maxim of Law, which we cannot disregard in the analyses presented here.
Although the new Law provides new paths and answers to several dilemmas that have long permeated the bidding and contracting scenario, it is imperative to recognize that it did not contemplate — and could not even do so — the practical challenges inherent in contracting services originating in the communications area.
At this point, it is worth remembering that the new Law was used to provide subsidies for the control and management of risks in public works bids, introducing a risk matrix and integrated and semi-integrated contracts. For example, this was not a mere coincidence, but a response to the known history of corruption involving these contracts. Similarly, similar treatment was expected for bids for advertising, communication and promotional marketing services, after all, both areas — construction and communication — face similar historical challenges related to corruption. It is no coincidence that agencies and construction companies are often involved in the same scandals, with advertisers/marketers and contractors side by side in the headlines throughout Brazil. A quick and simple search is enough to confirm this intersection.
With its 194 articles, the new Law provided public managers with a virtually inexhaustible list of new options, extensively addressing the issue of specific regulation. However, even after almost three years since its publication, its full implementation and all its practical implications remain a challenge.
IN SECOM/PR No. 1/2023, aiming to fill the gap in the new Law both in relation to the specific matter and its need for regulation, brought with it other rules that coexist with the general rule - that of Law No. 12,232/2010, which regulates bids and contracts for advertising services provided through advertising agencies, and that of Law No. 14,356/2022, the infamous “jabuti” law, which inserted articles 20-A and 20-B in Law No. 12,232/2010, presenting a new list of services: digital communication (understood as social media management and SEO) and institutional communication (read as press office and public relations).
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