The controversy surrounding the renewal of price registration record quantities in the new bidding law
Posted: Wed Feb 19, 2025 5:21 am
There is no legal certainty for the interpretation that moves towards corroborating this practice.
Under the aegis of Law No. 8,666/1993, the price registration system was dealt with in only six paragraphs set out in art. 15, granting a certain regulatory margin to the entities of the federation and opening several discussions in the jurisprudence of the courts of auditors around the most varied aspects involving the subject, such as the term of validity of the price registration minutes and its use in cases of ongoing services.
On the other hand, the new general framework for public tenders and contracts – Law No. 14,133/2021 – in addition to including the price registration system as one of the auxiliary japan telegram data bidding procedures (art. 78, item IV), established a legal regime applicable to the aforementioned model for executing the needs of the Public Administration, dedicating an entire section to its treatment (Section V), composed of five articles (arts. 82 to 86), fourteen paragraphs, twenty-five items and four subparagraphs.
Among the current discussions in the literature about the – by some called – ''new'' price registration system inaugurated in Law No. 14,133/2021, one of them draws our attention, namely, the renewal of quantities initially fixed, so that, around it, we will make some reflections, without any intention of exhausting or establishing consensus on the subject.
It is important, as a preliminary, to recall that the new law ended the discussion that hovered over the maximum term of validity [1] of the binding and obligatory document, which had – and still has – the genesis of a commitment for eventual and future contracting by the Public Administration, having provided, in its art. 84, clearly and expressly, that it will be 1 (one) year and may be extended, for the same period, as long as it is advantageous. [2]
However, a new discussion has been opened in the literature, but now not about the possibility of extending the Price Registration Record but rather the full renewal of the quantity originally set.
In more practical terms, the question would be the following: could the Public Administration, faced with a need that is suited to the use of the price registration system, which was duly planned and anchored in the artifacts that translate it (DFD, ETP and TR), as well as dimensioning its quantity to be consumed within a period of 12 (twelve) months, renew it in full together with the term of validity? [3]
With due respect to understandings that move in the opposite direction, it is understood that there is no legal certainty to state, categorically, that the new law would open the way for this interpretation.
Our understanding is based on the wording of Article 84 of Law No. 14,133/2021, which states that '' The term of validity of the price registration record will be 1 (one) year and may be extended for the same period, provided that the advantageous price is proven'' .
Here, we must remember a legal maxim, known to us all, according to which when the law is clear, in theory, it would not be necessary to interpret it ( in claris cessat interpretatio ).
Article 84, which was transcribed above, is express in providing, solely and exclusively, for the term of validity of the price registration record and the possibility of its extension, provided that – the extension of such term of validity – is advantageous to the Public Administration.
The possibility of renewing the entire quantity initially set by the Administration is not contemplated – even if by a systematic or teleological interpretation –, under penalty of subverting the logic of planning, which, at the same time, is a basic principle for the faithful application of the law (art. 5) and must be implemented through rules set out therein ( eg, the description of the need must be based on a preliminary technical study, which is compatible with the annual procurement plan).
Under the aegis of Law No. 8,666/1993, the price registration system was dealt with in only six paragraphs set out in art. 15, granting a certain regulatory margin to the entities of the federation and opening several discussions in the jurisprudence of the courts of auditors around the most varied aspects involving the subject, such as the term of validity of the price registration minutes and its use in cases of ongoing services.
On the other hand, the new general framework for public tenders and contracts – Law No. 14,133/2021 – in addition to including the price registration system as one of the auxiliary japan telegram data bidding procedures (art. 78, item IV), established a legal regime applicable to the aforementioned model for executing the needs of the Public Administration, dedicating an entire section to its treatment (Section V), composed of five articles (arts. 82 to 86), fourteen paragraphs, twenty-five items and four subparagraphs.
Among the current discussions in the literature about the – by some called – ''new'' price registration system inaugurated in Law No. 14,133/2021, one of them draws our attention, namely, the renewal of quantities initially fixed, so that, around it, we will make some reflections, without any intention of exhausting or establishing consensus on the subject.
It is important, as a preliminary, to recall that the new law ended the discussion that hovered over the maximum term of validity [1] of the binding and obligatory document, which had – and still has – the genesis of a commitment for eventual and future contracting by the Public Administration, having provided, in its art. 84, clearly and expressly, that it will be 1 (one) year and may be extended, for the same period, as long as it is advantageous. [2]
However, a new discussion has been opened in the literature, but now not about the possibility of extending the Price Registration Record but rather the full renewal of the quantity originally set.
In more practical terms, the question would be the following: could the Public Administration, faced with a need that is suited to the use of the price registration system, which was duly planned and anchored in the artifacts that translate it (DFD, ETP and TR), as well as dimensioning its quantity to be consumed within a period of 12 (twelve) months, renew it in full together with the term of validity? [3]
With due respect to understandings that move in the opposite direction, it is understood that there is no legal certainty to state, categorically, that the new law would open the way for this interpretation.
Our understanding is based on the wording of Article 84 of Law No. 14,133/2021, which states that '' The term of validity of the price registration record will be 1 (one) year and may be extended for the same period, provided that the advantageous price is proven'' .
Here, we must remember a legal maxim, known to us all, according to which when the law is clear, in theory, it would not be necessary to interpret it ( in claris cessat interpretatio ).
Article 84, which was transcribed above, is express in providing, solely and exclusively, for the term of validity of the price registration record and the possibility of its extension, provided that – the extension of such term of validity – is advantageous to the Public Administration.
The possibility of renewing the entire quantity initially set by the Administration is not contemplated – even if by a systematic or teleological interpretation –, under penalty of subverting the logic of planning, which, at the same time, is a basic principle for the faithful application of the law (art. 5) and must be implemented through rules set out therein ( eg, the description of the need must be based on a preliminary technical study, which is compatible with the annual procurement plan).