In Plenary Ruling 2728/2022, published in TCU Bulletin 430, the Court addressed the issue of using the competition modality, instead of an auction, primarily in its electronic form, to contract three legal services without due technical justification.
According to the Representation presented by one of the companies participating in the contest, there were some irregularities in the procedure, including the hiring of legal services that, according to the specifications of the notice, would be characterized as being common, since there is no complexity or intellectual nature, so much so that the proposed remuneration was based on success.
In its defense, the entity of the S System informed that it opted for the competition modality given “the unavailability of the Banco do Brasil website , where the auctions are held, in offering the “lowest rate” option, therefore, given the technical unfeasibility of the system, “it opted for the competition modality, with the purpose of lebanon telegram data meeting the “lowest rate” criterion or lowest percentage of fees.”
The TCU did not accept the justification presented by the entity of the S System, as the competition allows the use of other types or judgment criteria – lowest price and greatest discount – which, in fact, are available in the Bank's system.
Furthermore, the Technical Unit of the Court of Auditors clarified that the three services tendered – related to (i) survey of judicial values, (ii) recovery of FGTS credits and (iii) review of parameters in social security contributions on the payroll of personnel – do not appear to have a complexity that makes them lose the nature of a common service, especially since the existence of the use of auctions for contracting similar services was also proven.
Thus, considering that the three legal services tendered correspond to common services, which could have been tendered per item, and which have been contracted by other bodies and entities through the auction modality, primarily electronic, the Plenary of the Court of Auditors understood that the entity of the S System did not justify either the grouping of the services in a single lot or the use of competition instead of the electronic auction, being, therefore, in disagreement with the principles of competitiveness and economy and with the TCU's own case law in Rulings 1,737/2021, 2,260/2019, 1,584/2016, 1,519/2015 and 1,809/2014, of the Plenary, Rulings 2,276/2019 and 5,613/2012, of the 1st Chamber and in Summary 247 [1] .
[1] TCU Summary 247: It is mandatory to admit the awarding by item and not by global price, in the bidding notices for the contracting of works, services, purchases and sales, whose object is divisible, as long as there is no harm to the whole or complex or loss of economy of scale, in view of the objective of providing broad participation of bidders who, although not having the capacity to execute, supply or acquire the entire object, can do so in relation to autonomous items or units, and the qualification requirements must be adapted to this divisibility.
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