In view of the provisions of Law 14,133/2021, what period should the Administration consider for the purposes of assessi
Posted: Wed Feb 19, 2025 5:32 am
During the validity of Law 8,666/1993, the guidance expressed by the prevailing doctrine and the Office of the Attorney General of the Union [1] was that the Administration should, when assessing the suitability of the bidding waiver due to value, take into account the total cost of the expense for the entire possible period of the contract, which included possible extensions.
The arguments that justified this position pointed to the duty to plan contracts and the preservation of the bidding process itself, as this sought to prevent the undue division of expenses kuwait telegram data with the intention of circumventing them (bidding), aspects that are still current and highlighted in the new legal text, especially planning – the absence of which can lead to undue division –, which was initially raised by art. 5 of Law 14,133/2021:
“Art. 5º In the application of this Law, the principles of legality, impartiality, morality, publicity, efficiency, public interest, administrative probity, equality, planning , transparency, effectiveness, segregation of functions, motivation, binding to the public notice, objective judgment, legal certainty, reasonableness, competitiveness, proportionality, speed, economy and sustainable national development will be observed, as well as the provisions of Decree-Law No. 4,657, of September 4, 1942 (Law of Introduction to the Rules of Brazilian Law) .” (emphasis added)
Law 14,133/2021, however, when dealing with the waiver of bidding due to value, gave a new direction to the issue, since it expressly [2] establishes that the Administration must, for these purposes, consider the sum of what is spent by the managing unit [3] in the budgetary exercise.
Here is the legal text:
“Art. 75. Bidding is not required:
I – for contracts involving amounts less than R$119,812.02 (one hundred and nineteen thousand eight hundred and twelve reais and two cents), [4] in the case of engineering works and services or motor vehicle maintenance services;
II – for contracts involving amounts less than R$59,906.02 (fifty-nine thousand nine hundred and six reais and two cents), [5] in the case of other services and purchases;
(…)
§ 1º For the purposes of measuring the values that meet the limits referred to in items I and II of the caput of this article, the following must be observed :
I – the sum of what is spent in the financial year by the respective management unit;
II – the sum of expenses incurred with objects of the same nature , understood as those related to contracts in the same field of activity.” (emphasis added)
Thus, although the previous arguments remain valid, that is, the Administration's duty to plan its contracts and take precautions to prevent undue splitting of expenses, it cannot be denied that Law 14,133/2021 made a clear choice and in view of it, it is sufficient to consider, in order to qualify for the exemption from bidding due to value, the total cost of the expense in the budgetary year, which undoubtedly simplifies the activity of the agents involved in contract planning.
Therefore, although the objects of the administration's contracts allow for terms of validity longer than the budgetary year, [6] the fact is that Law 14,133/2021, presumably for practical reasons, preferred to link the waiver of bidding due to the value to the amount to be spent in the budgetary year and not to the total cost of the expense for the entire permitted period of validity, [7] which, in fact, is currently more extensive and comprehensive compared to that permitted by Law 8,666/1993. [8]
The conclusions expressed in Opinion 486/2023 of the Internal Audit of the Public Prosecutor's Office of the Union and in Opinion 00009/2023/CJU-GO/CGU/AGU of the Legal Consultancy of the Union in the State of Goiás, respectively, are valid in this regard:
“15. We understand, however, that NLLC3 had the merit of resolving the doubt established by the gap in the provision of Law No. 8,666/1993. Therefore, to qualify for the exemption from bidding due to value, the total expense in the financial year with the contracting of objects of the same nature will be considered, aiming to eliminate undue fractionation in the contracting.
16. The possible capitulation of the bidding waiver based on value is a procedure to which the law intends to reserve – by definition – fewer obstacles and bureaucracy, greater simplification of procedures, freedom and discretion, maximum efficiency, so that it is to be concluded that it would not be at the time of formalizing the contract that the obstacles should arise. In other words, the law did not provide any reservation or control point with the intention of assessing the materiality of the object in accordance with the contractual term, rather, it expressly provided that the amount spent for the object of the same nature is the amount executed in the financial year.” [9]
“3. Examining the issue in more detail, the teleology of the rule, and under the other rules of interpretation applicable in cases of exceptions to the positive rules, it cannot be denied that for the purposes of measuring the values that meet the limits referred to in items I and II of the caput of article 75 of Law No. 14,133/2021, the sum of what is spent in the financial year by the respective managing unit must be observed exclusively and in the textual and unequivocal form provided, as well as the sum of the expenses incurred with objects of the same nature, understood as those related to contracts in the same field of activity.
4. These are the only requirements expressed, in legal form, for the waiver of bidding for the value. And under the terms already indicated in the previous statement, any exception to these requirements would have to be expressly established, and Law No. 14,133/2021 does not provide a hypothesis to exclude the incidence of these two assumptions.
5. In this situation, the interpretation cannot introduce new requirements not explicitly stated in the law, especially since it expressly and categorically mentions that the sum of what is spent in the financial year must be taken into account, which rules out the inclusion of possible contractual extensions or periods longer than the financial year to assess the viability of the waiver of bidding. What is delimited is only what is spent in a financial year.” [10]
The Court of Auditors of the Municipalities of the State of Goiás follows the same line:
“Considering the Proposed Decision No. 02/2022 – GABMOA issued by Substitute Councilor Maurício Oliveira Azevedo;
Considering everything else that is contained in the records.
The Councilors of the Court of Auditors of the Municipalities of the State of Goiás, meeting in a Technical-Administrative Session, in view of the reasons set out by the Rapporteur, agree:
1. TO ACKNOWLEDGE this Consultation once the legal admissibility requirements set out in art. 31 of LOTCM/GO in conjunction with art. 199 of RITCM/GO have been met;
2. RESPOND to the consultant, regarding the merit, that:
1st QUESTION: For the purposes of determining the limit contained in article 75, I and II of the New Law on Tenders and Contracts – NLLC, the sum of what is spent in the financial year by each management unit on objects of the same nature, understood as those related to contracts in the same field of activity, must be considered. The administrative entity must pay attention to the importance of preparing an Annual Contracting Plan so that planning is carried out in an integrated manner, aiming at efficiency, economy, administrative rationalization, adequacy of demands, budgetary compatibility, centralization, standardization, among others.” [11]
The arguments that justified this position pointed to the duty to plan contracts and the preservation of the bidding process itself, as this sought to prevent the undue division of expenses kuwait telegram data with the intention of circumventing them (bidding), aspects that are still current and highlighted in the new legal text, especially planning – the absence of which can lead to undue division –, which was initially raised by art. 5 of Law 14,133/2021:
“Art. 5º In the application of this Law, the principles of legality, impartiality, morality, publicity, efficiency, public interest, administrative probity, equality, planning , transparency, effectiveness, segregation of functions, motivation, binding to the public notice, objective judgment, legal certainty, reasonableness, competitiveness, proportionality, speed, economy and sustainable national development will be observed, as well as the provisions of Decree-Law No. 4,657, of September 4, 1942 (Law of Introduction to the Rules of Brazilian Law) .” (emphasis added)
Law 14,133/2021, however, when dealing with the waiver of bidding due to value, gave a new direction to the issue, since it expressly [2] establishes that the Administration must, for these purposes, consider the sum of what is spent by the managing unit [3] in the budgetary exercise.
Here is the legal text:
“Art. 75. Bidding is not required:
I – for contracts involving amounts less than R$119,812.02 (one hundred and nineteen thousand eight hundred and twelve reais and two cents), [4] in the case of engineering works and services or motor vehicle maintenance services;
II – for contracts involving amounts less than R$59,906.02 (fifty-nine thousand nine hundred and six reais and two cents), [5] in the case of other services and purchases;
(…)
§ 1º For the purposes of measuring the values that meet the limits referred to in items I and II of the caput of this article, the following must be observed :
I – the sum of what is spent in the financial year by the respective management unit;
II – the sum of expenses incurred with objects of the same nature , understood as those related to contracts in the same field of activity.” (emphasis added)
Thus, although the previous arguments remain valid, that is, the Administration's duty to plan its contracts and take precautions to prevent undue splitting of expenses, it cannot be denied that Law 14,133/2021 made a clear choice and in view of it, it is sufficient to consider, in order to qualify for the exemption from bidding due to value, the total cost of the expense in the budgetary year, which undoubtedly simplifies the activity of the agents involved in contract planning.
Therefore, although the objects of the administration's contracts allow for terms of validity longer than the budgetary year, [6] the fact is that Law 14,133/2021, presumably for practical reasons, preferred to link the waiver of bidding due to the value to the amount to be spent in the budgetary year and not to the total cost of the expense for the entire permitted period of validity, [7] which, in fact, is currently more extensive and comprehensive compared to that permitted by Law 8,666/1993. [8]
The conclusions expressed in Opinion 486/2023 of the Internal Audit of the Public Prosecutor's Office of the Union and in Opinion 00009/2023/CJU-GO/CGU/AGU of the Legal Consultancy of the Union in the State of Goiás, respectively, are valid in this regard:
“15. We understand, however, that NLLC3 had the merit of resolving the doubt established by the gap in the provision of Law No. 8,666/1993. Therefore, to qualify for the exemption from bidding due to value, the total expense in the financial year with the contracting of objects of the same nature will be considered, aiming to eliminate undue fractionation in the contracting.
16. The possible capitulation of the bidding waiver based on value is a procedure to which the law intends to reserve – by definition – fewer obstacles and bureaucracy, greater simplification of procedures, freedom and discretion, maximum efficiency, so that it is to be concluded that it would not be at the time of formalizing the contract that the obstacles should arise. In other words, the law did not provide any reservation or control point with the intention of assessing the materiality of the object in accordance with the contractual term, rather, it expressly provided that the amount spent for the object of the same nature is the amount executed in the financial year.” [9]
“3. Examining the issue in more detail, the teleology of the rule, and under the other rules of interpretation applicable in cases of exceptions to the positive rules, it cannot be denied that for the purposes of measuring the values that meet the limits referred to in items I and II of the caput of article 75 of Law No. 14,133/2021, the sum of what is spent in the financial year by the respective managing unit must be observed exclusively and in the textual and unequivocal form provided, as well as the sum of the expenses incurred with objects of the same nature, understood as those related to contracts in the same field of activity.
4. These are the only requirements expressed, in legal form, for the waiver of bidding for the value. And under the terms already indicated in the previous statement, any exception to these requirements would have to be expressly established, and Law No. 14,133/2021 does not provide a hypothesis to exclude the incidence of these two assumptions.
5. In this situation, the interpretation cannot introduce new requirements not explicitly stated in the law, especially since it expressly and categorically mentions that the sum of what is spent in the financial year must be taken into account, which rules out the inclusion of possible contractual extensions or periods longer than the financial year to assess the viability of the waiver of bidding. What is delimited is only what is spent in a financial year.” [10]
The Court of Auditors of the Municipalities of the State of Goiás follows the same line:
“Considering the Proposed Decision No. 02/2022 – GABMOA issued by Substitute Councilor Maurício Oliveira Azevedo;
Considering everything else that is contained in the records.
The Councilors of the Court of Auditors of the Municipalities of the State of Goiás, meeting in a Technical-Administrative Session, in view of the reasons set out by the Rapporteur, agree:
1. TO ACKNOWLEDGE this Consultation once the legal admissibility requirements set out in art. 31 of LOTCM/GO in conjunction with art. 199 of RITCM/GO have been met;
2. RESPOND to the consultant, regarding the merit, that:
1st QUESTION: For the purposes of determining the limit contained in article 75, I and II of the New Law on Tenders and Contracts – NLLC, the sum of what is spent in the financial year by each management unit on objects of the same nature, understood as those related to contracts in the same field of activity, must be considered. The administrative entity must pay attention to the importance of preparing an Annual Contracting Plan so that planning is carried out in an integrated manner, aiming at efficiency, economy, administrative rationalization, adequacy of demands, budgetary compatibility, centralization, standardization, among others.” [11]