Nearly thirty years later, the new Bidding Law is published and brings interesting news about the contracting of public service concessionaires for the supply of electricity
Published on April 1, 2021, Law No. 14.133/2021, known as the New Bidding Law, brought several changes to the legal system, with special changes in the rules for contracting by the Public Power of concessionaires for the provision or supply of electricity.
From the analysis of the aforementioned law, in particular its article 193[1], it appears that, on the date of its publication, articles 89 to 108 of the former Bidding Law (Law No. 8.666/1993) were revoked and that the entirety of Law No. 8.666/1993 will be revoked after 2 (two) years from the official publication.
Hence, it appears that, until the year 2023, Laws No. 14.133/2021 and 8.666/1993, and public entities will be able to gradually adapt to the changes brought about. In addition, this deadline will also be important for the jurisprudence and legal theory to establish themselves on the subject.
That said, it is important to clarify that, in cases of contracting for the provision or supply of electricity with the concessionaires, there is still a provision for contracting with exemption from bidding, as can be seen from the wording of article 24, XXII of Law No. 8.666/1993[2], included in the part of the law not yet revoked.
On this point, it is emphasized that, when comparing Law No. 8.666/1993 with the New Bidding Law No. 14.133/2021, it appears that the wording of waiver of bidding for contracting the supply of electricity with the concessionaires was not repeated, as it is not included in the list brought by article 75 of the new Law, nor was it included in the list of unenforceability of bidding brought in article 74.
However, it was expressed in the caput of article 75 that the bidding is not required when the competition is not viable. This wording reiterates what is already provided for in article 25 of Law No. 8.666/1993 and deals with the impossibility of competition due to the absence of contracting alternatives, that is, when there is no plurality of suppliers to perform the service.
It will then be with this new legal position, of unenforceability of bidding due to the absence of competition, that the contracting of concessionaires for the supply of electricity will fit, as they are usually the only suppliers, especially for smaller municipalities located in the countryside of the states.
Thus, our analysis then moves to article 72 of Law No. 14.133/2021 which provides for direct contracting, including cases of waiver and non-requirement of contracting, the latter supported by the absence of other suppliers. The aforementioned article requires the instruction of the contracting process with some documents, set out in items I to VIII[3].
In view of these new legal requirements, it will be necessary to adjust the contracts signed between the Public Entity and the electricity supply Concessionaires so that they include, in particular, the estimates of expenses, any technical and legal opinions and studies, proof of compatibility of the forecasts, justification of the price and authorizations from the competent authorities, among others.
In this point, it is emphasized that compliance with the specific requirement set forth in item IV of article 72, that is, the demonstration of the compatibility of the forecast of budget resources with the commitment to be assumed is the obligation of the contracting party, that is, of the public entity that wishes to carry out direct contracting, as it must demonstrate, in addition to the correction of values, through estimates (art. 72, II of Law No. 14.133/2021), also the ability to bear the expenses provided for in the contractual instrument.
Another emphasis to be given is the novelty expressed in article 73 of Law No. 14.133/2021 on the existence of joint liability between the contracting public agent and the contracted party in the event of improper direct contracting[4], understood as that which occurred with intent, fraud or gross error, for damages caused to the treasury, without prejudice to other applicable legal sanctions.
Due to the publication of the New Bidding Law and the coexistence of the two legal systems, with special dissimilarities regarding direct contracts, managers and concessionaires began to worry about needed changes in the contracts in force.
However, it is understood that, at the moment, there is no need for precipitation so that new contracts are signed, taking into account that, as already mentioned, the contracts signed based on Law No. 8.666/1993 may remain valid until April 2023, when the law will be completely revoked and legal theory and jurisprudence on the subject will already be duly established.
Finally, if you choose to sign a new contract based on Law No. 14.133/2021, it will be necessary to pay attention to the impossibility of waiver of the bidding based on article 24, XXII of Law No. 8.666/1993 but rather the non-enforceability of bidding based on the caput of article 74 of Law No. 14.133/2021 due to the impossibility of the competition.
Fernanda Regina Negro de Oliveira – Legal Coordinator at Ernesto Borges Advogados. Specialist in Civil Procedural Law and Business Law from Fundação Getúlio Vargas.
[1] Art. 193. The following are revoked:
I – arts. 89 to 108 of Law No. 8.666, of June 21, 1993, on the date of publication of this Law;
II – Law No. 8.666, of June 21, 1993, Law No. 10.520, of July 17, 2002, and arts. 1 to 47-A of Law No. 12.462, of August 4, 2011, after 2 (two) years have elapsed since the official publication of this Law.
[2] Art. 24. It is not necessary to bid:
[…]
XXII – in contracting the provision or supply of electricity and natural gas with a concessionaire, permit holder or authorized, in accordance with the rules of specific legislation;
[3] Art. 72. The direct contracting process, which includes cases of unenforceability and waiver of bidding, must be accompanied by the following documents:
I – demand formalization document and, if applicable, preliminary technical study, risk analysis, term of reference, basic project or executive project;
II – expense estimate, which must be calculated in the manner established in art. 23 of this Law;
III – legal opinion and technical opinions, if applicable, that demonstrate compliance with the required requirements;
IV – demonstration of the compatibility of the forecast of budgetary resources with the commitment to be assumed;
V – proof that the contracted party fulfills the minimum certification and qualification requirements;
VI – reason for choosing the contracted party;
VII – price justification;
VIII – authorization from the competent authority.
Sole paragraph. The act authorizing direct contracting or the statement resulting from the contract must be disclosed and kept available to the public on an official website.
[4] Art. 73. In the event of improper direct contracting occurring with willful misconduct, fraud or gross error, the contracted party and the responsible public agent will be jointly and severally liable for the damage caused to the treasury, without prejudice to other applicable legal sanctions.
Available at: https://www.migalhas.com.br/depeso/351090/a-nova-lei-de-licitacoes-e-a-contratacao-para-fornecimento-de-energia
Autor: Fernanda Regina Negro de Oliveira • email: fernanda.oliveira@ernestoborges.com.br
