The Entities of the S System have been updating their Bidding and Contract Regulations in recent months and it is possible to observe the inclusion of new dynamics and some good practices established in the legislation applicable to the Public Administration. One of the novelties of some of the recently published RLC is the inclusion of dispute modes in the bidding procedures.
In this brief study we present some concepts and suggest procedures for applying the dispute modes in accordance with the provisions of the Bidding Regulations.
1. CONCEPTS, REGULATORY FORECAST AND APPLICATION
The bidding methods, in short, are the laos telegram data procedures adopted in the selection phase of the most advantageous offer for the entity, with successive or non-successive bids and their combinations.
The regulations of SEBRAE, SEST/SENAT, SESCOOP and SESC/SENAC, thus regulate the topic:
Art. 30. In any bidding modality, the dispute mode may be isolated or joint [1] :
I – open, in which case bidders will present their proposals through public and successive bids, increasing or decreasing; or
II – closed, in which case the proposals will remain confidential until the date and time designated for their disclosure.
§ 1º The isolated use of the closed bidding mode will be prohibited when the lowest price or highest discount judgment criteria are adopted.
§ 2º The use of the open bidding mode will be prohibited when the technique and price judgment criteria are adopted.
§ 3º The following bids will be considered intermediate:
I – equal to or lower than the highest bid already offered, when the highest bid judgment criterion is adopted;
II – equal to or greater than the lowest already offered, when the other judgment criteria are adopted.
Such procedures are not new in the world of public procurement. They are set out in the New Procurement Law, Law No. 14,133/21, and have already been provided for in the Law on the Differentiated Public Procurement Regime (RDC, Law No. 12,462/11, art. 17, I and II), in Decree No. 10,024/19, which regulates electronic bidding in the Federal Public Administration, and in the State-Owned Companies Law (Law No. 13,303/16).
The procedure for the modes of dispute, therefore, replaces the entire procedure previously established in the Regulation, which presented differences between the auction and the other modalities. In the recent regulations, the procedure was simplified by establishing the phases and modes of dispute.
Regarding the phases, the RLC listed the sequence, being (I) receipt of proposals and assessment of their conformity; (II) assessment of proposals; (III) analysis of qualification; (IV) communication of the result; (V) appeal stage; and, (VI) approval. Between the receipt of proposals and the assessment is inserted the respective dispute mode.
In a comment on the dispute modes provided for in Law 14,133/21, the Bidding Law, Marçal Justen Filho clarified:
In open mode, the content of the proposal is made public as soon as the public session begins. In closed mode, the bidder's proposal is kept confidential until it is disclosed.
But there is another essential difference. In the open mode, each bidder's initial proposal is followed by others, in an open competition regime. In the closed competition mode, there is a single proposal from each bidder.
In short, the open bidding process involves two stages. There is the initial proposal from the bidders and there is a subsequent competitive phase, in which each bidder becomes aware of the proposals from the other competitors and has the opportunity to formulate successive open bids, of increasing or decreasing value.
This does not occur in the closed dispute mode, which is exhausted in the formulation of the initial proposals. (JUSTEN FILHO, Marçal. Comments on the Law of Public Tenders and Contracts – Ed. 2021, Publisher: Revista dos Tribunais, TITLE II. OF BIDS, CHAPTER IV. OF THE PRESENTATION OF PROPOSALS AND BIDS, Page RL-1.16, PROVIEW)
The way in which proposals are presented in public sessions and the procedural structure of the competition represent the major distinctions in the modes of competition and, based on the text of the Entities' Regulations, it is possible to identify 8 possibilities:
open face-to-face dispute mode
electronic open dispute mode
closed face-to-face dispute mode
electronic closed dispute mode
open-closed face-to-face dispute mode
electronic open-closed dispute mode
closed-open face-to-face dispute mode
electronic closed-open dispute mode
The stages of the dispute modes in the RLC were not detailed, but it is possible to define a procedure based on the practice already operationalized by the Public Administration and which should be regulated internally and/or set out in the notice.
Initially, it is necessary to choose the dispute mode, in accordance with the limits established in the Regulation itself, with the closed dispute mode being prohibited in isolation when the lowest price or highest discount judgment criterion is adopted; and the open dispute mode will be prohibited if the technical and price criterion is adopted.
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