It is known that the New Procurement Law – Law No. 14,133/2021 – came into force on April 1, 2021. Instead of granting Law No. 14,133/2021 a period of vacancy – which usually occurs when there is a transition of laws –, the legislator chose to establish a period of coexistence between them, in order to allow the Public Administration to already apply the new regulations (to the extent possible), while providing the necessary regulations, as well as the training of its employees, in order to assimilate the entire content of the law, which has a very extensive wording (almost 200 provisions) and brought several changes in the processing of bids and some modifications in direct contracting and in the legal regime applicable to contracts.
Indeed, according to the initial wording of art. 193 of Law 14.133/21, the provisions of Law no. 8.666/93, Law no. 10.520/02 and part of Law no. 12.462/11 would only be revoked after the expiration of two years from April 1, 2021 - with the exception of arts. 89 to 108 of Law no. 8.666/93, which regulated the crimes and penalties, as malaysia telegram data well as the corresponding judicial process and procedure, which were revoked on the same date that Law no. 14.133/21 came into force.
The deadline, therefore, for the New Bidding Law to become mandatory was April 1, 2023. However, in response to pressure, mainly from the Municipalities, on March 31, 2023, Provisional Measure No. 1,167 was published, extending said deadline to December 30, 2023.
It should be noted that the extension concerns the mandatory nature of the law and not its validity, which means that public bodies that have already adopted the necessary measures to implement Law No. 14,133/21 can apply it immediately, in line with art. 191, which expressly allows the body to choose to bid or contract directly in accordance with the regime of Laws No. 8,666/93 or 10,520/02 or Law No. 14,133/21.
Under the terms of the Provisional Measure, opting for the previous legal regime, the publication of the notice or authorization for direct contracting must occur by December 29, 2023 and the chosen option must be expressly stated in these documents.
Although the extension was celebrated by some, representing some relief in the face of the chaos that was looming for public bodies that were not yet prepared for the full adoption of Law No. 14,133/21, it is important to keep in mind that, for the notice to be published by December 29, 2023, the entire preparatory phase of the competition must be completed. And, considering that, with very rare exceptions, the preparatory phase takes, on average, four to five months to be completed, it is necessary to recognize that time is not on the Public Administration's side.
The situation becomes even more complex if we consider that the sole paragraph of art. 11 of Law No. 14,133/21 provides for the competence of senior management to align scheduled contracts with the agency's strategic plan, which ends up revealing the effective need to establish an Annual Contracting Plan.
Although it is recognized that art. 12, item VII, of Law No. 14,133/21 leads to the conclusion of the option, and not the obligation, of preparing the Annual Procurement Plan, it is difficult to envision, in our opinion, adequate planning and achievement of the objectives of the New Law without the use of this important artifact, which is why we defend the need for its preparation.
The PCA has the important function of enabling the construction of budget laws and the financial organization for the following fiscal year. It also rationalizes the hiring of each agency and ensures the transparency of expenses, as it must be published in computerized systems.
The aforementioned plan requires a preparation schedule, which includes the assessment of needs, the consolidation of demands, the strategic hiring calendar and approval by senior management.
Adopting the premise that the PCA is necessary and considering that Law No. 14,133/21 came into force on April 1, 2021 and will be mandatory from December 30, 2023, it is necessary to conclude that the hiring for the 2024 fiscal year must be provided for in the aforementioned plan.
In this sense, the Attorney General's Office of the State of Paraná issued Resolution No. 150/2022 - PGE, in which it reiterated that “the bodies/entities of the state Public Administration will be required to prepare their respective Annual Procurement Plans from 2023 onwards, for implementation in 2024 , in accordance with the guidelines issued by the State Secretariat for Planning and Structural Projects. b. There is no impediment for the bodies/entities to prepare their PCA's from 2022 onwards, however the obligation begins in 2023 onwards. c. From 2024 onwards, the bidding processes must, as a rule, be compatible with the current Annual Procurement Plans”. (emphasis added)
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