Possibility of designating commissioned employees as Contracting Agents under the New Bidding Law: Analysis of ruling no
Posted: Wed Feb 19, 2025 5:13 am
This article aims to analyze the consultation made to the Court of Auditors of the State of Paraná (TCE/PR), which resulted in Ruling No. 2528/24, on the possibility of commissioned civil servants exercising the function of contracting agent provided for in Law No. 14,133/2021 (New Bidding Law). The Court's decision explores the limits and exceptions to the appointment of commissioned civil servants, as well as the requirements that must be observed for their implementation.
1. Introduction
Law No. 14,133/2021 introduced significant innovations to the legal framework for public tenders and administrative contracts in Brazil, including the creation of the contracting agent, responsible for coordinating public tender processes. This innovation raised doubts, especially regarding the possibility of commissioned civil servants exercising italy telegram data this function, notably in contexts of a shortage of qualified civil servants.
2. Contextualization of the Consultation
The consultation was formulated by the Municipal Chamber of Paranaguá, through its President, Mr. Fábio dos Santos, questioning whether, given the shortage of effective civil servants and the impossibility of new appointments, due to the Electoral Law, it would be possible to exceptionally designate commissioned civil servants as contracting agents.
3. The Role of the Contracting Agent in the New Procurement Law
The contracting agent is defined in art. 6, LX [1] , and in art. 8 [2] of Law No. 14,133/2021, as the person designated by the competent authority, chosen from among effective civil servants or public employees of the permanent staff of the Public Administration, with the responsibility of making decisions, monitoring the progress of the bidding process and ensuring the good development of the contest until approval.
Therefore, according to art. 8, the contracting agent must be a civil servant or public employee belonging to the permanent staff of the Public Administration. Although the reading of art. 7, I [3] , may, at first, suggest the possibility of appointing civil servants who are not part of the permanent staff for such function, it is important to highlight that the referred article does not apply directly to the function of contracting agent, even though its requirements, especially those provided for in items II and III [4] , are also pertinent to this figure.
In our understanding, the flexibility mentioned in art. 7 applies to other public agents who, together with the contracting agent, are responsible for executing the Bidding Law, such as members of the contracting committee, managers and contract inspectors, among others. According to Filho [5] , “public agents are all those who, in any capacity, perform a public function as agents of the State. They are members of public bodies, whose will is imputed to the legal entity. They therefore comprise the fundamental trilogy that gives the profile of the Administration: bodies, agents and functions.” Thus, all civil servants fall under this concept, which justifies their identification by the New Bidding and Contracts Law (NLLC). However, only effective civil servants or those belonging to the permanent staff can be designated as contracting agents.
1. Introduction
Law No. 14,133/2021 introduced significant innovations to the legal framework for public tenders and administrative contracts in Brazil, including the creation of the contracting agent, responsible for coordinating public tender processes. This innovation raised doubts, especially regarding the possibility of commissioned civil servants exercising italy telegram data this function, notably in contexts of a shortage of qualified civil servants.
2. Contextualization of the Consultation
The consultation was formulated by the Municipal Chamber of Paranaguá, through its President, Mr. Fábio dos Santos, questioning whether, given the shortage of effective civil servants and the impossibility of new appointments, due to the Electoral Law, it would be possible to exceptionally designate commissioned civil servants as contracting agents.
3. The Role of the Contracting Agent in the New Procurement Law
The contracting agent is defined in art. 6, LX [1] , and in art. 8 [2] of Law No. 14,133/2021, as the person designated by the competent authority, chosen from among effective civil servants or public employees of the permanent staff of the Public Administration, with the responsibility of making decisions, monitoring the progress of the bidding process and ensuring the good development of the contest until approval.
Therefore, according to art. 8, the contracting agent must be a civil servant or public employee belonging to the permanent staff of the Public Administration. Although the reading of art. 7, I [3] , may, at first, suggest the possibility of appointing civil servants who are not part of the permanent staff for such function, it is important to highlight that the referred article does not apply directly to the function of contracting agent, even though its requirements, especially those provided for in items II and III [4] , are also pertinent to this figure.
In our understanding, the flexibility mentioned in art. 7 applies to other public agents who, together with the contracting agent, are responsible for executing the Bidding Law, such as members of the contracting committee, managers and contract inspectors, among others. According to Filho [5] , “public agents are all those who, in any capacity, perform a public function as agents of the State. They are members of public bodies, whose will is imputed to the legal entity. They therefore comprise the fundamental trilogy that gives the profile of the Administration: bodies, agents and functions.” Thus, all civil servants fall under this concept, which justifies their identification by the New Bidding and Contracts Law (NLLC). However, only effective civil servants or those belonging to the permanent staff can be designated as contracting agents.