The Guarantees Provided by Law No. 14,133/21 Contracting Works and Engineering Services: Greater Security for Public Administration or a Disincentive to Competitiveness?

Abstract

Public procurement, in addition to the legal regulations employed to them, already brings in its very essence the observance of greater zeal, responsibility and caution throughout the contracting process, given the continuing need imposed on managers to give a better application and destination of public resources, so that they can actually achieve the purposes intended by the government agency before the demands presented by society. To achieve the objectives sought with the contracting, the new law on public tenders and administrative contracts, Law nº 14.133 of April 1, 2021, highlights the Administration's need to ensure the selection of the proposal capable of generating the most advantageous contracting result, including aspects related to the object's life cycle. It is known that the confirmation of obtaining a more advantageous proposal does not necessarily imply hiring the one that presents the lowest monetary value, but one that is demonstrably executable and able to effectively meet the interests and desires of the community. The purpose of this study is to demonstrate, when the bidding involves the contracting of engineering works and/or services and considering the method of judging proposals brought by the new public contracting regulations, that, depending on the case, the winning bidder may be required to submit an additional guarantee, in addition to other guarantees that may be required, instead of becoming a mechanism capable of safeguarding the Administration's interests, in fact, it may cause an adverse and even harmful effect to the government, discouraging and damaging the competition, making it difficult to obtain a proposal that is certifiably more advantageous to the government and, more than that, going against one of the main objectives of public bids outlined in the law by the legislator itself. The methodology employed for the present research was explanatory, of a qualitative nature, and its source of data was documentary and bibliographical research on the subject.