Contracting through Non-Competitive Bidding due to Notable Specialization: Opportunities and Challenges for Public Admin
Posted: Wed Feb 19, 2025 5:13 am
The non-competitive bidding process established in article 74 of Law 14.133/2021 is a valuable tool to ensure the contracting of highly specialized and complex services. However, there are still doubts and challenges faced by some entities, especially regarding the justification for choosing the supplier and the justification of prices. With adequate attention and a clear understanding of the legal requirements, it is possible to ensure the effectiveness and transparency of this process, based on solid market research and a careful analysis of the service provider's notable specialization.
Transparency and Accountability: Fundamental Pillars
The Federal Court of Auditors (TCU) reiterates, in its decisions, the importance of transparent and responsible management of public resources. This implies the adoption of public administration principles that guarantee efficiency, effectiveness and efficacy in procurement. The implementation of good governance practices in public procurement not only ensures compliance with applicable legislation, but also protects the public interest, strengthens credibility and italy telegram data optimizes the management of entities, allowing their institutional objectives to be achieved in an ethical and sustainable manner.
Applicability of Non-enforceability
Law 14,133/2021 presents an exemplary list of situations in which contracting by non-competitive bidding is applicable. Among these situations, the most notable are the contracting of specialized technical services of an intellectual nature with professionals or companies with renowned specialization, including technical studies, audits, consultancies, personnel training, and other specific activities listed in the regulation. This article will focus on the contracting of legal advice, a topic that has generated diverse interpretations and led to Direct Constitutionality Action No. 45, under judgment at the Federal Supreme Court, due to controversies over the applicability of the non-competitive bidding for these services.
Definition and Importance of Notorious Specialization
Law 14,133/2021 defines notable specialization as the quality of a professional or company that, based on previous performance, studies, experience, publications, organization, infrastructure, technical team, among other criteria, demonstrates that its work is essential to the full satisfaction of the objectives of the contract (art. 6, item XIX). This new approach, which replaces the requirement of uniqueness of the object present in the old Law 8,666/1993, focuses on the need to prove that the work of the professional or company is crucial to the fulfillment of the contract.
Some scholars, such as Jose dos Santos Carvalho Filho [1] , suggest that the elimination of the “singularity of the object” may have generated more uncertainty than clarity, as it imposes on the manager the burden of justifying the need for absolute individualization, considering the unique and specialized nature of the contract. According to Bandeira de Mello, “the case of notorious specialization concerns work marked by individualizing characteristics” [2] .
Therefore, to justify the non-requirement of bidding, it is essential to evaluate both the characteristics of the service provider and those of the service required. If the service is common, routine or does not require a high level of specialization, direct contracting by non-requirement is not justified, as this would violate the principles of economy, impartiality and equality. Non-requirement is more appropriate when the service requires a specific technique and exclusive skills of the service provider, which makes an objective comparison between proposals unfeasible.
Controversies in the Contracting of Legal Services
The hiring of legal advisory services or consultancy services without the need for a public tender raises debates. Although the Statute of the Bar Association was amended to link the uniqueness of services provided by lawyers and accountants to the notoriety of the executors, it cannot be concluded that all services provided by renowned specialists can be hired without the need for a public tender. According to the understanding of the TCU [3] , it is the differentiated characteristics of the service that lead to its non-requirement, not just the notoriety of the provider.
Transparency and Accountability: Fundamental Pillars
The Federal Court of Auditors (TCU) reiterates, in its decisions, the importance of transparent and responsible management of public resources. This implies the adoption of public administration principles that guarantee efficiency, effectiveness and efficacy in procurement. The implementation of good governance practices in public procurement not only ensures compliance with applicable legislation, but also protects the public interest, strengthens credibility and italy telegram data optimizes the management of entities, allowing their institutional objectives to be achieved in an ethical and sustainable manner.
Applicability of Non-enforceability
Law 14,133/2021 presents an exemplary list of situations in which contracting by non-competitive bidding is applicable. Among these situations, the most notable are the contracting of specialized technical services of an intellectual nature with professionals or companies with renowned specialization, including technical studies, audits, consultancies, personnel training, and other specific activities listed in the regulation. This article will focus on the contracting of legal advice, a topic that has generated diverse interpretations and led to Direct Constitutionality Action No. 45, under judgment at the Federal Supreme Court, due to controversies over the applicability of the non-competitive bidding for these services.
Definition and Importance of Notorious Specialization
Law 14,133/2021 defines notable specialization as the quality of a professional or company that, based on previous performance, studies, experience, publications, organization, infrastructure, technical team, among other criteria, demonstrates that its work is essential to the full satisfaction of the objectives of the contract (art. 6, item XIX). This new approach, which replaces the requirement of uniqueness of the object present in the old Law 8,666/1993, focuses on the need to prove that the work of the professional or company is crucial to the fulfillment of the contract.
Some scholars, such as Jose dos Santos Carvalho Filho [1] , suggest that the elimination of the “singularity of the object” may have generated more uncertainty than clarity, as it imposes on the manager the burden of justifying the need for absolute individualization, considering the unique and specialized nature of the contract. According to Bandeira de Mello, “the case of notorious specialization concerns work marked by individualizing characteristics” [2] .
Therefore, to justify the non-requirement of bidding, it is essential to evaluate both the characteristics of the service provider and those of the service required. If the service is common, routine or does not require a high level of specialization, direct contracting by non-requirement is not justified, as this would violate the principles of economy, impartiality and equality. Non-requirement is more appropriate when the service requires a specific technique and exclusive skills of the service provider, which makes an objective comparison between proposals unfeasible.
Controversies in the Contracting of Legal Services
The hiring of legal advisory services or consultancy services without the need for a public tender raises debates. Although the Statute of the Bar Association was amended to link the uniqueness of services provided by lawyers and accountants to the notoriety of the executors, it cannot be concluded that all services provided by renowned specialists can be hired without the need for a public tender. According to the understanding of the TCU [3] , it is the differentiated characteristics of the service that lead to its non-requirement, not just the notoriety of the provider.