Before delving into the central theme of this article, it is important to clarify that the topic – as could not be otherwise – will be analyzed in light of Law No. 13,303/16, which governs procurement within the scope of state-owned companies. This clarification is necessary due to the advent of Law No. 14,133/21. In fact, on April 1, 2021, Law No. 14,133/21 was published, which, under the terms of art. 1, establishes general bidding and contracting rules for the direct, autarchic and foundational Public Administrations of the Union, States, Federal District and Municipalities. The first paragraph of this provision makes it clear that the rule does not apply to public companies, mixed-capital companies and their subsidiaries, governed by Law No. 13,303/2016 [1] – [2] .
Having established this premise, it is necessary italy telegram data to discuss the acceptability of proposals in contracts established by state-owned companies, which necessarily involves understanding one of the objectives of the competition – selecting the most advantageous proposal.
Article 31 of Law No. 13,303/2016 establishes that “bids held and contracts entered into by public companies and mixed-economy companies are intended to ensure the selection of the most advantageous proposal, including with regard to the life cycle of the object, and to avoid operations that characterize overpricing or overbilling (…)”.
It is clear from the outset that the objective of the bidding process is not to select the cheapest proposal, a mistake that has led to disastrous contracts for decades. It is necessary to break the paradigm that the bidding process always aims to find the cheapest solution. This is because the economic aspect is not absolute for defining advantage, and the individual must meet the minimum quality requirements, considering the life cycle of the object, direct and indirect costs, based on values that are feasible.
There is no doubt, therefore, that the selection of the most advantageous proposal is directly related to the correct description of the object. Therefore, the concept of the most advantageous proposal must be established in each case, with a clear, adequate and justified definition of the intended object, with the specifications and characteristics necessary to meet the intended purpose.
To ensure the selection of the most advantageous proposal, it is essential to adequately describe the object in the terms of reference, that is, it is the specification that will define the cost-benefit relationship, the risks inherent to the contract, among others.
It is essential to plan the hiring process so that the requesting area has enough time to consult the market, compare existing solutions and justify the one that represents the greatest advantage.
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