Without a doubt, the new bidding law is a topic that is stirring up the legal world. After all, it is a rather complex law, with many articles and which, according to experts, raises many questions.

Therefore, on IDPCast we had an entire episode on the subject and brought to the table qualified experts in Administrative Law who thoroughly analyzed Law No. 14.133/2021, better known as the New Bidding Law (NLLC).

We are honored to have the presence of IDP professors Vládia Pompeu (Master in Law, special advisor at the AGU), Antonio Rodrigo Machado (Lawyer and Master in Law), and Marilene Mattos (Lawyer and PhD candidate in Public Law), as well as Michelle Marry (Master in Constitutional Law and Attorney for the Union).

Below are some of the topics being discussed:

What is the new Bidding Law?

New Law on Bidding and Contracts and Vacatio legis

What was the change in the logic of the bidding procedures?

– New bidding modality: Competitive Dialogue

– How are bidding-related crimes affected by the new Bidding Law?

What is the new Bidding Law?

The new Bidding and Contracts Law , Law No. 14.133/2021, establishes general rules for bidding and contracting for the direct, autonomous, and foundational Public Administrations of the Union, States, Federal District, and Municipalities. This law has been in effect since April 1, 2021, the date of its publication.

New Law on Bidding and Contracts and vacancy legis

As Professor Vládia Pompeu rightly pointed out, it's impossible to discuss the new Bidding Law without first addressing * vacatio legis*. This is a Latin expression meaning "vacancy of the law," that is, the period between the date of publication of a law and the beginning of its validity.

The first question in the debate regarding the New Bidding Law was about this topic. The question was answered by guest Marilene Matos. 

“We have to start from the beginning, right? And the beginning is really the period in which the law becomes mandatory. This law has a peculiarity! It doesn't have a vacatio legis , because Article 194 of the new Law determines that it comes into effect on the date of its publication, but then, to give time for administrations in general, especially municipalities in the interior of Brazil, to adapt to it, a transition period was created, in which we have the possibility of coexistence between the old law (Law 8.666/1993),” explains Professor Marilene.

Although already in effect, the Law established a new framework, allowing a specific body, municipality, or state to choose to apply it only two years after it comes into force, that is, in April 2023.

After these two years, the NLLC becomes mandatory at the federal, state, and municipal levels. However, the law includes another exception to allow smaller municipalities time to adapt to the regulations it establishes. 

Therefore, municipalities with up to twenty thousand inhabitants will have a period of up to six years to make the necessary adaptations to some provisions of the law. 

What was the change in the logic of the bidding procedures?

Formally, the new Bidding Law includes 5 bidding modalities: auction, competition, contest, and competitive dialogue.

According to Professor Marilene, the new Bidding Law has led to a reduction in the number of bidding modalities. 

This is because under the old law (Law 8.666/1993), there was a distinction between bidding methods based on value. So, broadly speaking, lower values ​​were bids submitted through invitations; intermediate values ​​through price quotations.

“The NLLC puts an end to this idea of ​​value. Today, when the administration opens a bidding process, it doesn't ask how much, it asks what, what am I looking to contract? If I want to contract common goods or services, I go to the auction, for example,” the professor explains.

What is the difference between an auction and a competitive bidding process?

With the new law (Law 14.133/2021), some administrative law experts have found the difference between auctions and competitive bidding somewhat confusing.

According to Marilene Matos, now without the value as a parameter as it was before, what differentiates one modality from another is precisely the procedure. 

In the auction process, a method for acquiring goods and contracting common services, the proposals are analyzed first, and only then is the eligibility of the best proposal judged. 

In contrast, competitive bidding is a modality geared towards contracting goods and services that are not common, such as works and engineering services or those of a predominantly intellectual nature. 

New bidding modality: Competitive Dialogue

As Professor Vládia highlighted in the IDPCast episode at NLLC, the Competitive Dialogue bidding process offered the possibility of a solution built consensually between the contracting institution and society in general.

Union Attorney Michelle Marry explains that Competitive Dialogue brought the private sector into the public sphere, as it allows for greater contact between the two parties in the search for a solution.

"Competitive Dialogue emerges with the aim of bringing innovative solutions in terms of technique and technology," the lawyer begins.

“Sometimes, in public administration, I don’t have a very clearly defined and precise objective, so I go to the private sector and ask them: ‘Hey private sector, what do you have to offer me in relation to this objective that I, the administration, want to contract?’ And from that, I create this dialogue, bringing new technologies and techniques into public administration, and again, directing it towards a managerial approach that brings me results,” Michelle exemplifies.

How have bidding-related crimes been affected by the new Bidding Law?

Professor Antônio Rodrigo Machado, one of the hosts of the episode, asked Marilene Matos how the issue of bidding crimes stands at NLLC. 

The professor provided a complementary response to what was said about the vacatio legis at the beginning of this episode.

"The 'vacatio legis' does not exist for bidding crimes; there is no possibility of this two-year adaptation period. Bidding crimes become effective immediately," Marilene emphasized.

The new Bidding Law mandates the repeal and transfer of these types of bidding crimes to the Penal Code. Therefore, it becomes immediately applicable.

Watch the full episode now!

These were just some of the points covered in the IDPCast episode about the New Bidding Law.

Be sure to check out the full version on your favorite audio platform or on YouTube. And finally, share it with your friends who want to know more about the subject.

Until the next episode!