The Senate has just approved PL 4253/2020, which institutes a new bidding regime for the Public Administration, consolidating rules previously foreseen in the Bidding Laws (Law 8.666/93), Auction (Law 10.520/02), and Differentiated Contracts Regime (Law 12.462/11), as well as introducing relevant amendments.
The new regime adds new judgment criteria, by consolidating two criteria already used: the “highest discount”, already used informally, and the “highest economic return”, which also already exists for efficiency contracts. The new criteria are listed in art. 32 of the new Law: a) lowest price; b) highest discount; c) best technique or artistic content; d) technique and price; e) highest bid; and f) highest economic return.
Focusing on the transparency of public contracts, the PL determines that the entire content of the contract signed with the Public Power should be disclosed on the company’s website, exempting only micro and small companies from the obligation.
The “invitation” and “price taking” were eliminated, and the “competitive dialogue” mode was created. The last one is a major innovation of the Bill. The price of each bidder will only be requested after the summons of particular parties has been made to present ideas and assist in the identification of the best solution. It will be used for the hiring of objects that involve technological or technical innovation; solutions that depend on the adaptation of the options available in the market or involve specifications that cannot be defined sufficiently by the Administration.
The competitive dialogue is very similar to the Manifestation of Interest Procedure (PMI). This administrative process makes it possible to request studies related to projects of public interest with the help of private initiative and without the immediate disbursement of resources. In PMI, there is no guarantee that there will be bidding, making it not so attractive to interested individuals. The competitive dialogue is in fact a bidding modality that links the structuring of the project with the competition for its contracting.
The bill addresses crimes in bids and administrative contracts with fines and imprisonment and detention penalties of 6 to 8 years (2 years more than in Law 8,666/93). The PL gives new wording for the crime of frustration of the competitive nature of the bidding procedure, changing its detention penalty to a four to eight year imprisonment.
The text now goes forward for presidential sanctioning.