Excessive formalism in public tenders
Posted: Sun Dec 22, 2024 5:29 am
The public bidding process is intended, as provided for in Article 3 of Law No. 8,666/1993, to ensure that the most advantageous proposal is selected by the Administration. This selection must be judged in accordance with the principle of bindingness to the invitation to bid. During the selection, the bidding committee must exercise caution so as not to violate bidding principles.
In this sense, it is necessary to avoid excessive and unjustified formalities in order to prevent damage to the public treasury and to enhance the cost-effectiveness and advantage of the proposal.
The Federal Court of Auditors – TCU takes a strong stance against excessive formalism:
The requirements for the purpose of qualification must be compatible with the object of the bidding, avoiding unnecessary formalities.
The institution promoting the bidding process should, at most, “take steps to clarify the issue, asking the company whether or not it used apprentices,” which would not constitute an irregularity, regardless of the response obtained. Consequently, the institution voted to grant the appeals for review and, at this point, to reject the justifications presented by the responsible email database australia parties involved, taking the fact into consideration to vote, further, for the irregularity of the corresponding accounts, without prejudice to the application of a fine, which was approved by the Plenary. Cited precedent: Ruling no. 7334/2009 – 2nd Chamber.1
In a ruling this year, the TCU once again issued a warning regarding the need for flexibility in the rules for bidding notices, as this is a beneficial measure, without the incidence of fraud in the fairness of the contest.
In this sense, through Ruling No. 342/2017 – 1st Chamber, originating from a representation that was considered prejudiced due to loss of purpose in view of the revocation of the Price Quotation, the municipality of Itaetê/BA was informed that:
[...] due to the consolidated jurisprudence of the TCU (Rulings 1.791/2006 and 1.734/2009-Plenary, among others), the disqualification of a company participating in a bidding process due to a mere material error in filling out an annex constitutes excessive formalism, provided that it is possible to verify the information provided, without harming the progress of the session, a situation that occurred in the judgment of the companies' proposals in the Price Quotation [...]. 2
Once again, the TCU considered the disqualification of the company to be excessive formalism.
It should also be noted that, when there are situations in this sense, the TCU usually guides managers to interpret the notice from the perspective of proportionality and reasonableness, in order to allow the greatest possible number of competitors.
1TCU. TC Process No. 008.284/2005-9. Ruling No. 2003/2011 – Plenary. Rapporteur: Minister Augusto Nardes.
In this sense, it is necessary to avoid excessive and unjustified formalities in order to prevent damage to the public treasury and to enhance the cost-effectiveness and advantage of the proposal.
The Federal Court of Auditors – TCU takes a strong stance against excessive formalism:
The requirements for the purpose of qualification must be compatible with the object of the bidding, avoiding unnecessary formalities.
The institution promoting the bidding process should, at most, “take steps to clarify the issue, asking the company whether or not it used apprentices,” which would not constitute an irregularity, regardless of the response obtained. Consequently, the institution voted to grant the appeals for review and, at this point, to reject the justifications presented by the responsible email database australia parties involved, taking the fact into consideration to vote, further, for the irregularity of the corresponding accounts, without prejudice to the application of a fine, which was approved by the Plenary. Cited precedent: Ruling no. 7334/2009 – 2nd Chamber.1
In a ruling this year, the TCU once again issued a warning regarding the need for flexibility in the rules for bidding notices, as this is a beneficial measure, without the incidence of fraud in the fairness of the contest.
In this sense, through Ruling No. 342/2017 – 1st Chamber, originating from a representation that was considered prejudiced due to loss of purpose in view of the revocation of the Price Quotation, the municipality of Itaetê/BA was informed that:
[...] due to the consolidated jurisprudence of the TCU (Rulings 1.791/2006 and 1.734/2009-Plenary, among others), the disqualification of a company participating in a bidding process due to a mere material error in filling out an annex constitutes excessive formalism, provided that it is possible to verify the information provided, without harming the progress of the session, a situation that occurred in the judgment of the companies' proposals in the Price Quotation [...]. 2
Once again, the TCU considered the disqualification of the company to be excessive formalism.
It should also be noted that, when there are situations in this sense, the TCU usually guides managers to interpret the notice from the perspective of proportionality and reasonableness, in order to allow the greatest possible number of competitors.
1TCU. TC Process No. 008.284/2005-9. Ruling No. 2003/2011 – Plenary. Rapporteur: Minister Augusto Nardes.