Public tenders are indispensable instruments for the Public Administration to contract goods, services and works, always observing the principles of transparency, efficiency and equality.

Currently regulated by Law No. 14.133/2021, the New Law on Bidding and Contracts (NLL), they modernized the old model of Law No. 8.666/1993, increasing the clarity of the applicable rules and principles.

Even with a robust legal framework, errors in the bidding process are still frequent, harming companies and public managers. These mistakes can compromise the success of a proposal, cause financial losses, damage reputations, and result in severe administrative sanctions.

This article details the 7 most common mistakes, explores the fundamental principles that guide bidding processes, and analyzes essential contractual modalities such as concession, permission, and authorization.

Fundamental principles of public procurement

The new Public Procurement Law establishes a solid foundation of principles, ensuring that public procurement is governed by values ​​that guarantee fairness, transparency, and efficiency. Among the main principles are:

• Legality: All bidding processes must comply with current legal regulations;
• Impersonality: Decisions must be impartial and objective, without favoritism;
• Morality: Actions must follow ethical standards;
• Publicity: All steps must be widely publicized or made available for consultation by the general public;
• Efficiency: The process should aim for the best result while employing the lowest possible cost.
• Equality: All competitors must have the same conditions for participation;
• Objective judgment: The evaluation criteria must be clear and established in advance;
• Planning: It prioritizes organization to optimize public resources;
• Transparency and probity: They reinforce confidence in the processes and prevent illicit practices;

These are some of the main principles of NLL, which are fundamental for conducting fair procurement aligned with the public interest, avoiding illicit practices and corruption.

The 7 main mistakes in bidding processes. public

1. Lack of strategic planning

Lack of planning is one of the most recurring and serious flaws. Many companies ignore the complexity of the bidding process, resulting in proposals that are misaligned with the requirements of the tender.

How to avoid:

• Conduct a detailed analysis of the tender requirements.
• Establish a schedule that includes deadlines and stages of the bidding process.
• Assess the financial and operational feasibility of the proposal before submitting it.

2. Inattention to notices

The bidding document is the "bible" of the bidding process, serving as a true guide that governs all stages and requirements of public procurement. Ignoring its details or interpreting them inadequately can result in immediate disqualification, as well as causing administrative and financial losses and damage to the company's reputation.

How to avoid:

• Read the entire notice, including the attachments.
• Create a checklist with all the requirements and deadlines.
• If necessary, seek clarification from the responsible authority.

3. Incomplete or Incorrect Documentation

One of the most common mistakes in bidding processes is the submission of incomplete or outdated documents, which frequently results in the bidder's disqualification. 

The extensive list of documents required by legislation and tender specifications, coupled with the complexity of the requirements, significantly contributes to this type of error. Therefore, extra attention and efficient document management are essential to avoid this problem.

How to avoid:

• Maintain an up-to-date database with all required documents.
• Perform a thorough check before submitting the documentation.
• Have a specialized team review the processes.

4. Underestimating costs and deadlines

Companies that submit unrealistically low bids in an attempt to win tenders often face difficulties in contract execution, such as delays and financial losses.

How to avoid:

• Use management tools to calculate costs and schedules.
• Analysis of historical data from similar projects.
• Make sure the proposal covers all direct and indirect costs.

5. Lack of knowledge of the laws

Ignorance or misinterpretation of the New Bidding Law (Law No. 14.133/2021) may lead to the disqualification of the company or the incorrect execution of the contract.

How to avoid:

• Participate in courses and training on public procurement.
• Consult legal advisors to clarify any doubts.
• Stay informed about legislative updates from reliable sources.

6. Communication failures

Ineffective communication can lead to misunderstandings, delays, and conflicts with the contracting agency.

How to avoid:

• Establish clear channels of communication from the start.
• Keep stakeholders informed about the project's progress.
• Hold regular meetings to align expectations.

7. Disregard for environmental and social criteria.

Sustainability and social responsibility criteria are increasingly valued in bidding processes. Ignoring them can result in loss of points or even disqualification.

How to avoid:

• Include sustainable and social practices in the proposal.
• Demonstrate the positive impact of the project on the community.
• Consult the official announcement to understand how these criteria will be evaluated.

Types of public contracts: concession, permission, and authorization.

The new Bidding Law regulates various contractual modalities, such as concession, permission, and authorization, each with specific purposes.

• Concession: intended for the provision of public services or the operation of public assets, with contracts that generally involve significant investments. Example: highway concessions.
  
• Permission: Characterized by its simplicity and precarious nature, geared towards less complex public services. Example: municipal public transportation.
  
• Authorization: It allows the use of goods or the performance of specific activities. Example: authorization for events in public areas.

These contracts require special attention, both in the preparation of proposals and in their execution, to avoid administrative sanctions.

The connection between bidding processes and administrative contracts.

Public tenders and administrative contracts are interdependent. The tender selects the most suitable supplier, while the contract regulates the relationship between the parties. Examples of administrative contracts include:

• Public works contracts, such as the construction of schools and hospitals;
• Supply contracts, such as the purchase of school supplies;
• Public-private partnerships (PPPs), which distribute risks between the public and private sectors.

Consequences for breach of contract

Failure to comply with contractual obligations may result in serious penalties, as provided for in articles 155 and 156 of Law No. 14.133/2021. These penalties include:

• Warning: applied to minor offenses;
• Traffic ticket: It can vary from 0,5% to 30% of the contract value; and
• Temporary suspension: It prevents the bidder from participating in new bids for up to two years;
• Declaration of unsuitability: prohibits the company from contracting with the Public Administration for up to six years.

Tips to avoid penalties

To minimize the risk of administrative sanctions, consider:

• Implement a compliance program to ensure adherence to regulations.
• Prioritize quality in contract execution, meeting technical specifications.
• Maintain open and proactive communication with the contracting authority.

Benefits of planning and continuous training

An effective way to avoid the most common mistakes and negative consequences in bidding processes is to invest in continuous training and a deeper understanding of legislative changes. With the constant evolution of regulations, such as those brought about by Law No. 14.133/2021, up-to-date knowledge becomes indispensable for navigating the world of public procurement safely.

For example, the article “New Bidding Law: Everything you need to know” from the IDP blog offers a comprehensive overview of the innovations introduced by the new legislation.

Another relevant resource on the topic is the article "Administrative Contracts: what are they and what are their characteristics?" , available in another blog post, which explores in detail the various types of contracts and demonstrates how these instruments guarantee efficiency and credibility to bidding processes.

The closing thought

Participating in public tenders requires more than good intentions; it demands technical preparation, legal knowledge, and attention to administrative principles. Avoiding common mistakes and adopting best practices can not only increase the chances of success but also preserve the company's reputation in the market.

Want to understand more about the world of bidding and master the best strategies to win in bidding processes? Enroll in the Postgraduate Program in Administrative Law at IDP. With renowned professors and a practical approach, you will be prepared to excel in this strategic segment.

Don't waste time, turn challenges into opportunities and stand out in the public and private sectors!

References

CARVALHO, Guilherme. Public Bidding and Application of Sanctions: Between Prerogative and Obligation . Consultor Jurídico , September 27, 2024. Available at: https://www.conjur.com.br/2024-set-27/licitacao-e-aplicacao-de-sancoes-entre-a-prerrogativa-ea-obrigatoriedade/.

JUSTEN FILHO, Marçal. Course in Administrative Law. 15th ed. rev., updated. Rio de Janeiro: Forense, 2024. E-book. (1 online resource). ISBN 9786559649822. Available at: https://integrada.minhabiblioteca.com.br/books/9786559649822.

MAZZA, Alexandre. Administrative Law Course. 14th ed. rev., updated. São Paulo: Saraiva Jur, 2024. E-book. (1 online resource). ISBN 9788553620296. Available at: https://integrada.minhabiblioteca.com.br/books/9788553620296.