When contracting IT services by a state-owned company, the lack of acceptability criteria for unit prices in a lowest overall price bidding process violates article 56, § 4, of Law 13,303/2016. In this case, any increases in overpriced items during the execution of the contract will be considered “spreadsheet gambling”, with potential damage to the public treasury and consequent obligation for reparation by those who cause it.
The discussion about whether or not it is mandatory to establish criteria for the acceptability of unit and global prices in bidding notices is not new. Even before the legal system established by Law No. 8,666/1993, many heated debates were proposed about the provisions of its art. 40, X. [1] which, on a cold reading, indicated that such criteria would be mandatory elements in any bidding notice. However, the Federal Court of Auditors reached a conclusion different from this understanding, establishing the following position:
TCU Summary 259: In the contracting of korea telegram data engineering works and services, the definition of the acceptability criteria for unit and global prices, with the setting of maximum prices for both, is the obligation and not the option of the manager.
It is clear that the Federal Court of Auditors has relaxed the letter of the law, leaving it up to the manager, in each specific case, to decide whether or not to establish these premises for judging proposals for cases that do not involve engineering works or services. There is a clear reason for this outcome. In engineering works and services, the specter of overpricing is very present, because, as these are objects whose cost is the result of the sum of several individually priceable cost components, when judged by the lowest overall price criterion, the proposal becomes a true “closed door”, opening space for what, in terms of contracting risk management, has become known as “opportunistic behavior by the supplier agent ex ante”. Such behavior is the heinous practice of “spreadsheet gambling”.
According to Marcus Vinicius Campiteli [2] , this practice is a device used by bidders who drastically reduce the prices of certain unit costs and increase the costs of others, so that this compensatory movement does not increase the overall value of the proposal above the estimated value of the contract. The author adds that, as a consequence, the bidder, upon winning the bid and entering into the contract:
[…] after the contractual changes already foreseen by the winner of the contest at the time of preparing the proposal, the overall value of the contractual object becomes more expensive in relation to its market value, and may become the most disadvantageous proposal for the Administration among the others in the bidding process.
Also in a didactic way, the TCU [3] explains what the “spreadsheet game” is, verbatim :
The “spreadsheet game”, a spurious mechanism found in the contracting of some public works, usually works like this: in the bidding process, the contractor quotes certain service items for the work well above the market price, while others are offered at prices well below; as the high and low unit prices offset each other, the overall value of the work is within the contractor’s expectations; after being contracted, the contractor takes advantage of changes in the services, whether forced or due to design deficiencies, which will reduce the cheapest items or increase the most expensive ones, or even do both; the result is that the most expensive items prevail in the contract, distorting the original proposal, with an increase in the price of the work.
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