The differentiated treatment of micro and small companies (ME) and small companies (EPP) in the bidding process

I - Introduction
Complementary Law No. 123, of December 14, 2006, introduced the new National Statute of Microenterprises and Small Businesses into the Brazilian legal system.

According to article 3 of Complementary Law No. 123, of December 14, 2006, a simple company and the entrepreneur referred to in art. 966 of the Civil Code, duly registered, that have a maximum annual revenue of up to R$ 240,000.00 (two hundred and forty thousand reais); the Small Business is the one that, under the same conditions above, has annual revenue between R$ 240,000.00 (two hundred and forty thousand reais) and R$ 2,400,000.00 (two million, four hundred thousand reais), that is, the The Statute redefined the rules applicable to Micro and Small Businesses, establishing the companies' annual revenue as the main criteria for framing.

The country's legislator sought to comply with the provisions of the 1988 Constitution, which ensured differentiated and favored treatment for Micro and Small Businesses (arts. 170, IX and 179), in an attempt to boost the performance of small businesses in the market. .

In this way, the new Statute entered the sphere of administrative law, mainly by promoting a series of changes in the general rules of public bidding, which will be discussed in this study.

Administrative law is based on basic principles that systematize the entire operation of Public Administration, especially when it comes to the controversy surrounding "Public Tenders". In this matter, it is essential that society is attentive to the legal commands introduced, given the administrative management of public resources collected.

From the analysis of Complementary Law nº 123/2006, the legislative option of promoting the incentive to micro and small companies through the execution of public expenses can be verified, however, the fact that such expenses reach large public resources, which are funded by the society, should not be neglected.

Thus, a parallel will be drawn between Public Tenders and the differentiated and favored treatment of small companies, in order to demonstrate whether Complementary Law No. carried out by the Government.

II – Historical evolution of the infra-constitutional legislation of micro and small businesses
The first country to establish rules for differentiated and favored treatment of MEs and EPPs was the United States, during the Second World War, when it found the difficulties of MEs and EPPs in competing with large companies.

Realizing this inequality, the so-called “Smaller War Plants Corporation – SWPC” was created in 1942. After this legislation, more advanced legislation was instituted over time, until the birth of the “Small Defense Plants Administration – SDPA”, which is the current standard in force in the country.

The first Brazilian legislation to specifically address the rights and duties of the ME was Law No. its core provisions on government contracts, but it granted differentiated treatment in the administrative, tax, social security, labor, credit and business development areas.

After this rule, the Federal Constitution of 1988 emerged, which established favored, differentiated and simplified treatment for ME and EPP, in its articles 170, IX and 179, which is part of the general principles of economic activity to be dispensed by the Union, States, District Federal and Municipalities.

After the express constitutional norm of the Constitution establishing

differentiated and favored legal treatment for ME and EPP, the need arose to legislate in more depth.

The enactment of Law nº 8.864 of March 28, 1994, which did not have great repercussion due to the lack of regulation of its articles, brought an innovation, that is, it increased the annual gross revenue of the ME and extended the differentiated and favored treatment to EPP, as provided for in the Federal Constitution.

Law nº 8.864/94, increased the limit of gross revenue of MEs from 96 thousand to 250 thousand UFIRs, and cited for the first time the figure of the EPP providing in its concept that companies that had gross revenue equal to or less than 700 thousand UFIRs.

On December 5, 1996, Law No. 9,317 enacted, which provided for the tax regime for ME and EPP, instituting the Integrated System for Payment of Taxes and Contributions for ME and EPP – SIMPLES and other provisions.

Law No. 9,317/96, known as the Lei do Simples, brought differentiated, favored and simplified treatment to ME and EPP in relation to taxes and contributions, reducing the tax burden and simplifying the way in which federal taxes are collected. It also made it possible for states and municipalities to grant ICMS and ISS benefits.

The Lei do Simples was perfectly integrated with Laws nº 7.256/84 and 8.864/94, as they dealt with different matters related to ME and EPP, however, it revoked the chapter dealing with tax treatment from both rules, since the Lei do Simples granted benefits to ME and EPP with regard to the tax and fiscal area, while the two previous rules established other benefits that were not regulated by Law No. 9,317/96.

In 1999, the need arose to amend some provisions of the previous law, resulting in the following Statute, through Law No. in your art. 24″the government procurement policy will give priority to micro-enterprises and small businesses, individually or in association, with a special and simplified process under the terms of the regulations of this Law”.

The ME and EPP Statute, that is, Law no. 9,841/99 was regulated by Decree nº 3,474/00 which establishes the Permanent Forum of ME and EPP, living peacefully with the Simples Law and simplifying administrative, tax, social security and credit obligations.

In 2002, the Civil Code came into force, whose text was criticized when it dealt with ME and EPP, as it did not adapt to the special laws that ensure differentiated, favored and simplified treatment arising from constitutional norms.

In 2003, Constitutional Amendment No. 42 was edited, inserting the sole paragraph of art. 146, of the Federal Constitution, which instituted the creation of a Complementary Law to regulate a single regime for the collection of taxes and contributions from the Union, States, Federal District and Municipalities, which justified the LC Project nº 123/2004, giving rise to the LC No. 123 of December 14, 2006.

The LC nº 123/06, emerged from the initiative of SEBRAE (Brazilian Service of Support to Micro and Small Enterprises) and entrepreneurs interested in consolidating a project, which really managed to meet the real need of ME and EPP, projects that were added and they were replaced by the new text consolidated in 2005, including the novelty of the provisions on access to government markets.

LC nº 123/06 came to regulate a benefit granted by the Federal Constitution of 1988, guaranteeing ME and EPP the constitutional right of differentiated, favored and simplified treatment regarding the calculation and collection of taxes and contributions of the Union, the States, the Federal District and Municipalities, through a single legal system for collection, ancillary obligations, labor obligations, social security, access to credit and the market, technology, associativism and inclusion rules.

To Ana Paula Rocha Bonfim:

“The general law for microenterprises, also known as Super Simples, effectively starts to contribute to the construction of a sustainable environment for the development and growth of small businesses with the effective guarantee of a differentiated, simplified and favored legal treatment, through the regulation of the constitutional text”.

Thus, LC nº 123/2006 came to satisfy the wishes of micro and small entrepreneurs on the constitution and regulation of ME and EPP, in order to expand business and develop their growth in the Brazilian economy, since it brought Within it, several innovations, such as the permission to create differentiated conditions of incentive and promotion of economic and social development, favor and simplify the rules of preference dictated in its text.

2.1 The Constitutionality of Differential Treatment

Specifically in the case of microenterprises (ME) and small businesses (EPP), Complementary Law nº 123/2006 (National Statute of Microenterprises and Small Businesses) was edited, which brought benefits in the bidding procedure for these institutions, foreseen in its articles 42 to 49.

This differentiated treatment is supported by articles 170, item IX and 179 of CF/88, respectively, in verbis:

Art. 170. The economic order, founded on the valorization of human work and free initiative, aims to ensure a dignified existence for all, in accordance with the dictates of social justice, observing the following principles: […]

IX – favored treatment for small companies incorporated under Brazilian law and having their headquarters and administration in the country.

Art. 179. The Union, the States, the Federal District and the Municipalities will grant to micro and small companies, as defined by law, differentiated legal treatment, aiming to encourage them by simplifying their administrative, tax, social security and credit obligations , or by eliminating or reducing them by law.

Thus, there is no need to talk about the unconstitutionality of the differentiated treatment given to these companies, since Complementary Law No. 123/06 is absolutely constitutional.

Professor Irene Nohara also opined for the constitutionality of the law, but made reservations about how the doctrine and jurisprudence would comply with the institute, as for her the rules could generate substantial advantages for ME and EPP.

There is no reason for such concern, given that all administrative activity, in particular, the bidding is governed by the principle of equality. This principle is expressly provided for in art. 37, item XXI of the Magna Carta and also in art. 3, I, § 1, of law 8666/93, where the legislator prohibits favoritism and determines equality in competition between bidders.

The aforementioned principle aims to allow any interested parties, who are able to do so, to participate in the bidding process and that, during the course of this, all are treated equally, without any preference or discrimination. This description makes sense for competitors who are in the same position and condition of competition, but this is not what happens between ME, EPP and multinationals or large companies.

In this way, unequal treatment for unequals is justified in order to equalize competitors on the same level of competition. Equality must be respected due to differences, for this reason there is no doubt about the consistency of the differentiated treatment given by the legislator to MEs and EPPs.

Law 123/06 provides in its art. 47 that:

“In public contracts of the Union, the States and the Municipalities, differentiated and simplified treatment may be granted to micro and small companies with the objective of promoting economic and social development at the municipal and regional level, increasing the efficiency of public policies and the incentive to technological innovation, provided that it is foreseen and regulated in the legislation of the respective entity.”

The aforementioned article does not refer to the Federal District, but the majority doctrine understands that it can be covered in its context.

2.2 Concept of micro-enterprise (ME) and small business (EPP)

The eligibility criteria for ME and EPP are based on the gross revenue earned in each calendar year, which is to say that, if the billing is equal to or less than R$ 240,000.00 (two hundred and forty thousand reais), we will be facing of a microenterprise. If the billing is greater than R$ 240,000.00 (two hundred and forty thousand reais) and equal to or less than R$ 2,400,000.00 (two million, four hundred thousand reais), we are facing a small business.

These clarifications are necessary to verify if the companies participating in the bidding events are entitled to the benefits provided for in LC 123/06.

2.3 The prerogatives of micro and small companies established by the Law

Complementary Law no. 123/2006 established in the Single Section of its Chapter V ("Access to Markets"), entitled "Public acquisitions" (articles 42 and following), conditions favored to micro and small companies for contracting with the Public Administration, for through public tenders. Briefly, they are:

1 – In the biddings, the requirement of proof of fiscal regularity of micro and small companies will be made only for the purpose of signing the contract, and on the occasion of participation in bidding events, if there are tax restrictions, micro and small companies, a period of 02 (two) working days, extendable for an equal period, for the regularization of the required tax documentation;

2 – In the bidding processes, as a tie-breaking criterion, hiring preference for micro and small companies will be ensured. The Law also establishes that proposals submitted by micro and small companies that are equal to or up to 10% (ten percent) higher than the best classified proposal (fictitious tie) will be considered tied, provided that the latter is not also a small company, in the trading mode, the percentage interval is 5% (five percent). In the event of the so-called fictitious tie, the micro-company or small-sized company may submit a proposal for a price lower than that considered the winner of the event;

3 – Conducting bidding processes in which the participation will be exclusively of micro and small companies, in the case of contracts whose value is up to R$ 80,000.00 (eighty thousand reais);

4 – Requirement of subcontracting bidders for micro-enterprises or small companies in no more than 30% (thirty percent) of the total bid, as well as the establishment of a quota of up to 25% (twenty-five percent) of the object for contracting of micro and small companies, in tenders for the acquisition of goods and services of a divisible nature.

As for the prerogatives listed above, a series of findings can be inferred about the objectives achieved by Complementary Law no. 123/2006.

First, to regularize the required tax documentation, the small company will have the short period of 02 (two) business days, which can be extended for an equal period.

The scarcity of such period does not seem to reflect the slow pace of the Tax Administration that will be faced by the entrepreneur to obtain the certificate of tax regularity, required in the bidding. It should be noted that the computerized resources for obtaining the certificate are only available to taxpayers who do not have tax restrictions, which will naturally be qualified in the bidding process. On the other hand, small companies that have fiscal restrictions will necessarily need to appear before the Federal, State or Municipal Treasury to regularize the situation, which will certainly require the small business owner to wait much more than two days to overcome all bureaucratic obstacles.

As can be seen, the legal provision is certainly far from the reality of small Brazilian companies and the existing bureaucratic obstacles in the Tax Administration.

Another prerogative introduced by Complementary Law no. 123/2006 is the holding of bidding procedures, in the amount up to R$ 80,000.00 (eighty thousand reais), in which the participation is exclusive of micro and small companies.

Another measure introduced by the legislator, through Complementary Law no. 123/2006 is the requirement of subcontracting micro and small companies to fulfill the object of the contract signed with the Public Administration.

Such a measure puts aside concerns such as, for example, the conditions to be subcontracted, and the Public Power may be faced with excessive and disadvantageous prices practiced by small companies.

An important aspect to be considered also concerns the requirements for the subcontracting to be carried out, that is, the small company would be entering into a contract directly with the Public Administration, of up to 30% (thirty percent) of the value of the object, without having participated of a tender for that purpose.

It is a legal provision that unnecessarily and excessively exposes the principles of impersonality, morality and isonomy. These basic principles in the conduct of the public manager and the Public Administration.

In addition, the analysis of incentive measures for small businesses, contained in Complementary Law no. 123/2006, allows us to conclude that, in favor of small companies, the Public Power ends up moving away from the selection of the most advantageous proposal, encumbering the public coffers for the benefit of small entrepreneurs, either by carrying out bidding procedures only with small companies, to the detriment of a dispute carried out throughout the market, whether for subcontracting to the detriment of more advantageous conditions that could be achieved.

In this vein, the hiring of small companies, with the aim of encouraging their development, will not necessarily represent the achievement of the best results in the provision of public service, mainly due to the fact that the public need can be complex and require structuring. adequate technology of the entrepreneur to satisfy the demand of the population.

It is worth remembering that the Public Bidding must be carried out for the benefit of the Public Administration and not with the aim of financing the development of a particular business segment, since it is not an adequate instrument for the promotion of private activities.

For all the above, it is concluded that the national legislator failed to establish prerogatives in public bids, for small companies, as a way of encouraging their development in society.

III - Limitations to differentiated treatment if simplified
Article 49 of LC 123/06 deals with limitations on the practice of differential treatment in favor of small businesses, as shown below:

3.1. Forecast in the call instrument

Considering that the public notice is the internal law of the bidding, it appears that this restriction is based on the principle of binding to the invitation to bid.

In this sense, Marçal JUSTEN FILHO maintains that:

What the device intends is to determine that the entire call for a differentiated bidding satisfactorily explains the criteria and requirements for participation and judgment. In other words, the bidding will be void if the call notice does not meet these requirements; the application of legal criteria depends on their prediction and regulation in the public notice. This is not a presupposition of application or exclusion of differentiated bidding, but a requirement of its validity. In any case, it will be up to the legislation regulating the devices to establish the criteria that must be observed by the administrative authority that will prepare the public notice.

It should also be noted that article 10 of Decree 6,204/07 also requires the express provision of differentiated treatment in bidding procedures.

3.2. Minimum number of suppliers

The complementary legislation establishes that, in the absence of at least 3 (three) competitive suppliers classified as ME or EPP based locally or regionally and capable of complying with the requirements established in the bids, the differentiated treatment will not apply.

“The legal wording will certainly produce serious problems, as there is no allusion to the effective participation of a minimum number of bidders. What is established is the existence of at least three companies able to compete”, emphasizes Marçal JUSTEN FILHO.

Jair Eduardo Santana and Edgar Guimarães express concern about this restriction, positioning themselves as follows: “… We have already expressed concern about how to prove whether or not there are three small companies capable of complying with the requirements established in the invitation to bid.” (authors highlighted).

The understanding of Marçal Justen Filho is that this rule should be interpreted broadly, according to the following:

The peculiar nature of the disposition leads to the need for an expansive hermeneutic treatment of the disposition. The legislative will is not the absolute restriction of the dispute, but the competition between small companies. In this light, the ban on the participation of larger companies can only be justified if there is an effective and concrete competition between small companies. Hence the proposed interpretation, in the sense that the existence of three suppliers in conditions to participate in the event will be necessary. This will be a requirement for the adoption of differentiated bidding, restricted to the participation of small companies. However, the validity of the bidding will depend on the effective participation of at least three bidders in conditions of effective competition.

This provision will be particularly relevant when the differentiated bidding involves geographic restrictions on the participation of bidders. In cases where the event is reserved for ME or EPP based in a given Region or Municipality, the verification of the requirement will be essential, to ensure the achievement of the purpose of the established system.

3.3. “Advantage” for Public Administration

Jair Eduardo Santana and Edgar Guimarães state that: “item III deals with a topic that sounds obvious because, if there is no advantage for the Public Administration, it will certainly not be necessary to apply not only the solution of LC nº 123/06, but any other solution, because the public interest must even be superimposed on those of ME/EPP”.

It is convenient to reproduce the lessons of Marçal Justen Filho on the subject:

It must be understood that the Public Administration will not be allowed to disburse amounts incompatible with the prices available on the market. If the result of the differentiated bidding leads to prices higher than usual in the market, it will be up to the Public Administration to promote the revocation of the bidding. 🇧🇷

Going forward, it must be recognized that the rule of art. 49, Inc. III, involves two evaluation orders by the Public Administration. The identification of the negative effects of a differentiated bidding process must be done in advance or promoted when the result is ratified.

This means that, when considering the adoption of the differentiated bidding, it will be up to the Public Administration to exercise a judgment similar to that provided for in art. 23, paragraph 1, of Law No. 8,666. It will be a matter of formulating a forecast on the effects of economic scale, to determine whether the differentiated bidding will result in an increase in costs.

From all the above, it can be concluded that if the contracting is disadvantageous or harmful, it should not be carried out.

3.4. Direct hiring hypotheses

Item IV of article 49 of LC 123/06 determines that, if the bidding is expendable or unenforceable (direct contracting), the provisions referring to differential treatment do not apply.

Thus, the limitations of the differentiated and simplified treatment are concluded.

IV - BIDDING CONCEPT
Bidding in Brazil has always been mandatory, even before the Constitution

Federal Constitution of 1988, but over time it has been improved.

In Brazil, the bidding process underwent several transformations, starting with Decree No. systematization with Decree-Law nº 200/1962 which established the administrative reform at the federal level, being extended to the state and municipal administration through Law nº 5.45/1968, after these rules the bidding went through a structuring process, as there were still many gaps giving rise to various interpretations, thus resulting in Decree Law no. 2300/86, which was updated in 1987 with Decree-Law no.

With the advent of the Federal Constitution of 1988 in art. 37, XXI, the bidding received the status of a constitutional principle and its use by the Public, Direct, Indirect and Foundational Administration.

In 1993, the Union created Law No. 8,666, which established general rules for

public procurement and contracts.

These rules are effected by infra-constitutional laws that regulate the administrative bidding and contract in the country.

In the opinion of Celso Antônio Bandeira de Mello:

“The bidding aims to achieve a double objective: to provide governmental entities with possibilities to carry out the most advantageous business (since the establishment of competition between the bidders is preordained to this) and to ensure that the administrators have the opportunity to dispute the participation in the businesses that governmental persons intend to do. do with individuals”.

These are the basic objectives which regulate Law No. 8,666 of June 21, 1993, known as the Statute of Contracts and Bidding, which over the years has undergone some changes through Laws No. 8,883 of June 8, 1994, 9,648 of June 27, May 1998 and 9,854 of October 27, 1999.

Therefore, the bidding succinctly is the means by which the State acquires services and purchases in a transparent, egalitarian and competitive manner among competitors.

Law nº 8.666/93 disciplines 05 (five) types of bidding: Competition, price assessment, invitation, tender and auction.

The trading modality is a novelty in the bidding process, and was instituted by Provisional Measure nº 2026 of May 4, 2000, within the scope of the Union, being reformulated several times being regulated by Federal Law nº 10.520/02 which extended the trading modality also in the scope of the State and Municipality.

With globalization and technological growth, the auction began to be worked in its electronic mode, existing, therefore, the genre auction, subdivided into two species: face-to-face and electronic.

Bidding as a constitutional rule is governed by principles as explained in the caput of art. 37 of CF/88 and the specific principles inherent to it, summarized in the following precepts: formal procedure, publicity, equality between bidders, confidentiality in the presentation of proposals, binding to the public notice and administrative probity.

The norm does not conceptualize what is bidding, who does it are the indoctrinators.

As José dos Santos Carvalho Filho points out:

“Bidding must pay attention to two elements, namely, the legal nature of the institute, that is, how it fits within the legal framework and the second consists of the objective for which it is foreordained, which, by the way, constitutes the ratio essendi itself. of that instrument. The legal nature of the bidding is the administrative procedure with a selective purpose.

After verifying which are the two essential elements to conceptualize bidding, José dos Santos understands what we can call bidding.

As stated by José dos Santos Carvalho Filho:

“Bidding as the linked administrative procedure through which the Public Administration entities and those controlled by it select the best proposal among those offered by the various interested parties, with two objectives - the conclusion of a contract, or the obtaining of the best technical, artistic work. or scientific”.

In the understanding of Celso Antônio Bandeira de Mello:

“Tendering – in short – is a competition that governmental entities must promote and in which they open disputes between those interested in establishing certain relationships of patrimonial content with them, in order to choose the most advantageous proposal for public coexistence”.

According to Fernanda Marinela:

“Bidding is an administrative procedure for the selection of the best proposal among those presented by those who wish to contract with the Public Administration”.

According to Hely Lopes Meirelles:

“Bidding is the administrative procedure through which the Public Administration selects the most advantageous proposal for the contract of interest”.

As Celso Antônio Bandeira de Mello points out:

“Tendering is the administrative procedure by which a governmental person, intending to sell, acquire or lease goods, carry out works or services, grant concessions, work permits, service or exclusive use of public goods, according to conditions previously stipulated by him, summons interested parties. in the submission of proposals, in order to select the one that is most convenient according to parameters previously established and disclosed”.

When analyzing the concepts, we verified that the bidding is the necessary antecedent of the administrative contract, the contract is the logical consequence of the bidding, therefore, it is a mere administrative, bidding, preparatory procedure for the future adjustment, so that it does not give the winner no right to the contract, just an expectation of right.

It is one of the main instruments for controlling the application of public money, as it allows the Administration to choose, for contracting purposes, the most advantageous proposal, always placing bidders who wish to participate in the bidding process on an equal footing.

However, bidding does not consist only of obtaining the best proposal, but also of obtaining for the Public Administration the execution of works and the acquisition of quality goods and services at a good price.

Unfortunately, the search for the lowest price ends up making it difficult and even harming both individuals and the Public Administration.

In this sense, it is not always possible to attribute price as the main criterion for judging the proposals presented.

Such a position, generated as a rule by the Public Administration itself, eager to contain expenses, ends up leading to the acquisition of goods and services that are not always satisfactory.

Companies that propose to provide services or to provide goods, in turn, aware of such criteria, are much more concerned with finding ways to reduce costs in order to lower the value of the proposal to be presented as much as possible, failing to give due attention to the quality of what they propose to do.

In one way or another, the bidding process has identical and extreme importance, both for the Public Administration and for the society to which it is intended.

Furthermore, it does not consist only in obtaining the good price and good quality of the good or service, but also in encouraging the participation of a greater number of companies in order to generate competitiveness and dispute within the bidding process.

V - Principles that govern bids
The bidding for being part of the Public Administration must obey some constitutional principles in its procedure, as stipulated in art. 37 of CF/88.

In addition to the constitutional principles, it must obey the specific principles that govern the bidding, as established by law and designated by the indoctrinators.

In order to preserve the principles listed in CF/88, they are legality, impersonality, morality, publicity and efficiency.

The principles that govern the bidding, whatever its modality, are summarized in the following precepts: formal procedure, publicity of its acts, equality between bidders, confidentiality in the presentation of proposals, binding of the public notice or invitation, objective judgment, compulsory adjudication to the winner.

The Statute of Bids and Contracts added among the basic principles of bidding those listed in art. 3 of Law No. 8.666/93, which provides that bids will be processed and judged in accordance with the following principles: legality, impersonality, morality, equality, publicity, administrative probity, binding to the invitation to tender, objective judgment and those related to it.

As José dos Santos Carvalho Filho points out:

“As it was instituted by its own foundations, the bidding is guided by some principles, some of which are expressed in law, which define the guidelines in which the procedure must be situated. Not infrequently, the verification of the validity or invalidity of acts of the procedure takes these principles into account, which is why they should deserve a separate comment”.

5.1 Principle of Legality

The first to be considered is the principle of legality, which consists of faithfully obeying what the law determines. The same is explicitly provided for in art. 4 of Law No. 8,666/93, which determines that: “All those who participate in a bidding process promoted by the bodies or entities referred to in art. 1 have a subjective public right to faithful observance of the relevant procedure established in this Law, and any citizen may follow the development, as long as he does not interfere in a way to disturb or prevent the performance of works”.

The principle of legality means that all administrative activity is subject to compliance with the law and cannot deviate or deviate from it, under penalty of invalidation of the event. Hely Lopes Meirelles calls the principle of legality the principle of formal procedure.

In the understanding of Hely Lopes Meirelles:

“The principle of the formal procedure is what imposes the binding of the bidding to the legal requirements that govern it in all its acts and phases. These prescriptions derive not only from the law but also from the regulation, the obligation book and even from the public notice or invitation itself, which complements the higher standards, in view of the bidding to which it refers”.

For Fernanda Marinela, there are two principles, namely: the principle of legality and, as a result of this, the principle of formal procedure, understanding that these are different principles.

To Fernanda Marilena:

At the beginning of the formal procedure, the administrator must observe all the formalities required by law, under penalty of nullity of the bidding, thus representing a linked procedure (art. 4, sole paragraph).

José dos Santos Carvalho Filho understands that the principle of procedural formalism is a related principle, which is dispersed in the disciplinary regulation of bids.

They are the same called correlated principles because they derive from the basic principles and with which they are correlated by virtue of the matter they deal with.

For both, Marinela; Carvalho Filho the principle of legality is a basic principle and the principle of formal procedure is a related principle.

As stated by José dos Santos Carvalho Filho:

"The principle of procedural formalism conveys the notion that the rules of procedure adopted for the bidding must follow the parameters established by law, and administrators are not allowed to subvert them at their discretion."

Also, according to José dos Santos Carvalho Filho:

“The principle of legality imposes, mainly, that the administrator observes the rules that the law has outlined for the procedure. It is the application of due legal process, according to which the Administration is required to choose the right modality; that it is very clear about the selection criteria; that it only fails to carry out the bidding in the cases permitted by law; who carefully checks the qualification requirements of the candidates, and, finally, who is willing to achieve the colimated objectives, following the steps of the legal commandments”.

Hely Lopes Meirelles emphasizes:

“That the principle of formal procedure should not be confused with the formalism that is characterized by useless and unnecessary requirements”.

The same makes the observation that the procedure should not be annulled in the face of mere omissions or formal irregularities in the documentation or in the proposals, provided that, due to their irrelevance, they do not cause damage to the Administration or the bidders.

5.2 Principle of Impersonality

The principle of Impersonality has led the Administration to treat administrators without persecution and favoritism, as a consecration of the principle of equality of all before the law.

In other words, the public interest must be the only certain objective of any administrative act, dispensing the same treatment to all administrators who are in the same legal situation.

As Fernanda Marinela points out:

“The principle of impersonality, which represents the very purpose of this instrument, preventing favoritism, demanding that everyone be treated with absolute neutrality, which also represents a way of designating the principle of equality before the Administration”.

As prescribed by José dos Santos Carvalho Filho:

“That of impersonality indicates that the Administration must provide the same treatment to all administered who are in the same legal situation”.

5.3 Principle of Isonomy

Principle of Isonomy consists of treating bidders equally, so as not to harm or make it impossible for any bidder to participate.

It is a principle that has constitutional provision in art. 37, XXI of CF/88 and art. 3, paragraph 1 of Law No. 8,666/93.

It is a fundamental principle of the bidding process, as there cannot be a selective procedure with discrimination between the participants, or with a clause in the Public Notice that excludes any qualified bidders or harms them in the judgment.

This principle prohibits discriminatory clauses or biased judgment that unequals equals or equalizes unequals, favoring some and disfavoring others, with useless requirements for the public service, but with a certain destination for certain candidates.

In the understanding of Celso Antônio Bandeira de Mello:

“The principle of equality implies the duty not only to treat everyone who attends the event equally, but also to provide the opportunity to dispute it to any interested parties who, wishing to participate, can offer the indispensable conditions of guarantee”.

Still, for Celso Antônio Bandeira de Mello:

“The principle of equality, which, as is well known, supports different treatments for different situations, whenever there is a logical correlation between the discriminating factor and the difference in treatment”.

According to Hely Lopes Meirelles:

“Equality among bidders is a principle that prevents discrimination between participants in the bidding process, either through clauses that, in the public notice or invitation, favor some over others, or through biased judgment, which unequals equals or equalizes unequals”.

5.4 Advertising Principle

The principle of publicity consists of giving notice of all bidding acts, as provided for in art. 3, paragraph 3 of Law No. 8,666/93.

In other words, there can be no secret bidding, because it is the nature of the bidding to disclose all its acts and the possibility of knowing all open proposals and their judgment.

As precepts Hely Lopes Meirelles:

“The publicity of the acts of the bidding is a principle that ranges from the notices of its opening to the knowledge of the public notice and its annexes, the examination of the documentation and proposals by the interested parties and the provision of certificates of any parts, opinions or decisions related thereto. . It is because of this principle that they impose the opening of the envelopes of the documentation and the proposal in public and the official publication of the decisions of Organs judging bodies and of the respective contract, even if briefly (Arts. 3, paragraph 3, and 43, paragraph 1 of the Law No. 8,666/93)”.

Publicity aims to guarantee any interested party the right to participate and inspect the bidding acts.

The publicity of the bidding ranges from the disclosure of the notice of its opening, the knowledge of the public notice and all its annexes, the examination of the documentation and proposal by the interested parties, and the provision of certificates of any parts, opinions and decisions related to the process. bidding process, as long as they are formally requested and by whoever has the legitimacy to request them.

5.5 - Principle of Morality

According to Celso Antonio Bandeira de Mello:

"The principle of morality means that the bidding procedure will have to be carried out in accordance with appreciable ethical standards, which imposes, for the Administration and bidders, a correct, smooth, honest behavior, on both sides".

As prescribed by José dos Santos Carvalho Filho:

“The principle of morality requires that the administrator be guided by ethical concepts”.

Also, according to José dos Santos Carvalho Filho:

“Morality is associated with legality: if conduct is immoral, it must be invalidated.”

To Fernanda Marinela:

“The principles of morality and administrative probity, which require the observance of ethical and moral standards, the correction of attitudes, loyalty and good faith”.

Specifically for the administration, this principle is reiterated in the reference to the principle of administrative probity. It is underlined there that the contest must be conducted by it in strict obedience to morality guidelines, which evidently includes not only the defensive correction of the interests of those who promote it, but also the demands of loyalty and good faith. in dealing with bidders.

5.6 Principle of Administrative Probity

The principle of administrative probity is that Public Administration administrators behave in an honorable and honest manner towards bidders and bidding acts.

As prescribed by José dos Santos Carvalho Filho:

“The principle requires that the administrator act honestly towards the bidders, and above all towards the Administration itself, and evidently, contribute to ensuring that his activity is in fact focused on the administrative interest, which is to promote the most accurate selection possible. ”.

In the understanding of Hely Lopes Meirelles:

“Administrative probity is the duty of every public administrator, but the law included it among the specific principles of the bidding process, naturally as a warning to the authorities that promote or judge it”.

5.7 Principle of binding the Public Notice or principle to the Call Instrument

The binding principle consists of the administrator and the administrator obeying the rules imposed by the public notice, and the same cannot act in a different way stipulated by the invitation to bid.

Acting in a different way imposed by the public notice, which is the highest law between the parties, it is up to them to make the procedure invalid and it can be corrected in the Administrative or Judicial sphere through the appropriate action.

According to Fernanda Marinela:

“The instrument, as a rule, is the public notice that must define everything that is important for the event, and the Administrator cannot demand more or less than what is provided for in it. For this reason, the doctrine says that the public notice is an internal bidding law, being strictly bound to it, as provided for in art. 41 of the Law”.

As prescribed by José dos Santos Carvalho Filho:

“The principle of binding is extremely important. It avoids altering judgment criteria, in addition to providing certainty to those interested in what the Administration intends to do”.

In the understanding of Hely Lopes Meirelles:

The public notice is the internal law of the bidding process and, as such, binds both the bidders and the Administration that issued it to its terms”.

5.8 Principle of Objective Judgment

The principle of objective judgment consists of removing subjective criteria from management's judgment, which is a consequence of the principle of binding the invitation to tender.

The administrator cannot use subjective and highly personal criteria.

In the understanding of Hely Lopes Meirelles:

“It is the principle of every bidding that its judgment is based on concrete factors requested by the Administration, in comparison with what is offered by the bidders within the limits allowed in the public notice or invitation”.

To Celso Antonio Bandeira de Mello:

“The principle of objective judgment aims, of course, to prevent the bidding from being decided under the influence of subjectivism, feelings, impressions or personal purposes of the members of the judging committee. This concern is emphasized in art. 45 of the Law”.

It must be recognized, however, that absolute objectivity can only be guaranteed in advance in competitions decided solely on price. When quality, technique, performance – often indispensable for the assessment of proposals – come into question, it will not always be possible to achieve the ideal of extreme objectivity, because when goods or services are strongly related in these attributes, the primacy of one or on the other hand, it depends on an appreciation that cannot be reduced to a level that excludes personal opinions.

According to Celso Antonio Bandeira de Mello:

“The cardinal principles of bidding could be summarized as follows: a) competitiveness; b) isonomy; c) advertising; d) respect for the conditions fixed in the notice; and e) possibility for the contestant to inspect the compliance with the previous principles”.

José dos Santos Carvalho Filho, understands that in addition to the principles expressed in the Statute of Bidding and Contracts, there are also principles that are correlated with it, because they keep a connection with those.

According to José dos Santos Carvalho Filho, the correlated principles would be: the principle of competitiveness, the principle of indistinction, the principle of inalterability of the public notice, the principle of secrecy of proposals, the principle of procedural formalism, the principle of prohibition of the offer of advantages and the principle of obligation.

VI - Bidding modalities
Bidding is the genus of which the modalities are species.

Law no. 8.666/93 establishes in its art. 22, 05 (five) types of bidding, which are: competition, price assessment, invitation, tender, auction.

The auction is not one of the modalities provided for in Law No. 8,666/93, since it is a new modality, provided for by Law No. .

Each modality has its specific purpose, and the Administrator, when bidding, must observe two criteria to know which modality will be used.

The two criteria are: The value of the contract and the object to be tendered, except when it comes to trading, which is not limited to values.

It is important to point out that the object to be contracted must be well defined by the Administrator, otherwise the bidding will be void.

Law nº 8.666/93 and Law nº 10.520/02 conceptualize in their arts. 22 and 1, the bidding modalities, to be analyzed below:

6.1 Competition

Law No. 8,666/93 in its art. 22, § 1, defines what competition is, in verbis:

“Art. 22 - (...)

§ 1 - Competition is the type of bidding between any interested parties, who, in the initial phase of preliminary qualification, prove that they have the minimum qualification requirements required in the public notice for the execution of its object”.

Hely Lopes Meirelles conceptualizes competition as being:

“Competition is the specific type of bidding for contracts of great value, in which the participation of any interested parties, registered or not, who satisfy the conditions of the public notice, summoned with the minimum advance provided for by law, with wide publicity by the official body is admitted. and by the private press”.

In other words, any interested party who, in the preliminary qualification phase, proves to have minimum qualification requirements required in the public notice for the execution of the object of the bidding, can participate in the competition.

Competition is the mandatory modality due to certain limits, which in turn are subject to periodic reviews.

The limits set for the use of competition are provided for in the standard, namely:

In the case of engineering works and services above R$ 1,500,000.00 and for purchases and other services above R$ 650,000.00.

However, regardless of the value, the law provides that the competition modality must be adopted in the following cases: a) purchase of real estate; b) disposals of real estate for which the auction modality has not been adopted; c) concessions of real right of use, service or public work; d) international tenders.

Competition has two characteristics: rigorous formalism and publicity, as it is a bidding modality with broad purchasing power.

It is further divided into two sub-species: International Competition and National Competition.

International Competition is used for those acquisitions or services whose internal market is not sufficient, however, it must comply with all the requirements imposed by law, without affronting the principle of isonomy.

Publicity in the competition modality must occur as follows: the minimum interval period, counted from the last publication of the invitation to bid until the date designated for the delivery of envelopes, as a rule, is 30 (thirty) consecutive days, if the criterion is “lowest price”, which must occur at least once in the Official Gazette of the Union, the Federal District or the Official Gazette of the State and in a widely circulated newspaper (Art. 21, I, II and III).

If the criterion used is “best technique”, “best technique and price” or a full-service contract, it must be 45 (forty-five) consecutive days (art. 21, § 2, I, b and II 'a”).

6.2 Pricing

Price taking is the second modality provided for by Law No. 8,666/93, in its art. 22, § 2, in verbis:

“Art. 22 - (...)

§ 2 - Pricing is the type of bidding between interested parties duly registered or who meet all the conditions required for registration until the third day prior to the date of receipt of the proposals, observing the necessary qualification”.

Pricing is used for medium-sized purchases and services, and the participation of bidders is restricted, that is, bidders must be duly registered 03 (three) days before the opening of bids, observing the necessary qualification.

This registration becomes an essential requirement for the participation of companies, if they are not registered or irregular before the body, they may be disqualified and will be unable to participate in the aforementioned bidding process.

The registration has legal provision in art. 34 of Law n.º 8.666/93, establishing that the bodies that carry out bids frequently must keep the registration of companies valid for a maximum of 01 (one) year.

As well as competition, the legislator was also concerned with establishing limits for the use of price taking, namely:

In the case of engineering works and services up to R$ 1,500,000.00 and for purchases and other services up to R$ 650,000.00.

José dos Santos Carvalho Filho, notes that the Price Check has 03 (three) essential requirements: registration, prior authorization and replacement, defined as follows:

Registration is a necessary condition to participate in this modality.

Prior qualification consists of analyzing whether or not the bidder can participate in the bidding, since it is done in advance, that is, at the time of registration in the cadastral records.

And the replacement would be the cases in which the administrator could choose to

make competition instead of taking prices, but the reciprocal would not fit.

José dos Santos Carvalho Filho emphasizes on the matter:

“You can choose a more formal modality than the relevant one, but never a more informal modality”.

The publicity must occur, in the acquisition of prices, a period of 15 (fifteen) days, at least, between the publication and the date fixed for the receipt of the proposals when the criterion used is the “lowest price”. However, if the competition is judged in accordance with the "types", that is, by the criteria of "best technique" or "technical and price", the term will be at least 30 (thirty) days, counting in the same way as in competition (Art. 21, § 2, I and III).

6.3 Invitation

The invitation is the simplest form of bidding, the invitation is intended for businesses of modest economic significance. The Administration chooses who it wants to invite, among the possible interested parties, registered or not.

Law n.º 8.666/93, defines in its art. 22, § 3, invitation as being:

Art. 22 - (...)

§ 3 - Invitation is the bidding modality between interested parties in the field relevant to its object, registered or not, chosen and invited in a minimum number of 3 (three) by the administrative unit, which will post, in an appropriate place, a copy of the instrument notice and will extend it to others registered in the corresponding specialty who express their interest up to 24 (twenty-four) hours in advance of the submission of proposals”.

As we can see in the invitation, because it is a low-value contract, its advertising is also restricted and only invited bidders or those who belong to the same branch of the bid object and who are registered can participate in this bidding modality.

However, there are authors who understand differently, stating that those bidders who were not invited and who are not registered can participate in this modality.

As stated by Celso Antônio Bandeira de Mello:

"Even those who are not registered, symmetrically to the provisions regarding the taking of prices, will be entitled to dispute the invitation if, upon becoming aware of it, they request registration within the period established in relation to that bidding modality (three days before receipt of the proposals)".

In the invitation for the contract to be possible, at least 03 (three) valid proposals are required, that is, that meet all the requirements of the invitation to bid. It is not enough to obtain 03 (three) proposals. They must be valid. If this does not occur, the Administration must repeat the invitation and invite another interested party, while there are uninvited registrants in the last bids, except in cases of market limitation or manifest disinterest of the guests, circumstances that must be justified in the bidding process.

The amounts to be contracted are: for engineering works and services up to R$ 150,000.00 and in the case of purchases and services up to R$ 80,000.00.

Publication in the invitation takes place through the invitation letter, forwarded to the invited companies and fixed in the office atrium.

However, in order to reach the largest possible number of interested parties in the tendered object and avoid the repetition of the procedure, many bodies or entities have been using the publication of the invitation in the official press and in a large circulation newspaper, in addition to direct distribution to suppliers in the sector.

Publication in the press and in a widely circulated newspaper gives the invitation the same publicity as the competition and the pricing, and removes the public agent's discretion.

The minimum period for communicating the invitation to open proposals is 5 (five) working days (Art. 21, § 2, IV) .

6.4 Contest

The contest is the type of bidding that aims to acquire a technical, artistic or scientific work, has an intellectual character.

Law n.º 8.666/93 in its art. 22, § 4, defines as:

Art. 22 - (...)

§ 4 - Contest is the type of bidding between any interested parties to choose a technical, scientific or artistic work, through the institution of prizes or remuneration to the winners, according to the criteria contained in the public notice published in the official press at least 45 (forty-five) ) days.

The competition is a modality that does not have many formalities, despite having to fulfill the requirements imposed by the norm and the principles.

In this modality, the form of payment is through awards, but the offer of remuneration is also allowed.

However, the payment can only be made if the author of the project transfers the patrimonial rights to the Administration, and allows it to use it according to its convenience, this of course, must be previously determined in the invitation to bid.

In this modality, the fulfillment of the obligation extinguishes the burden of the Administration by itself.

As Hely Lopes Meirelles points out:

“The contest ends with the classification of the works and the payment of the prizes, not conferring any right to contract with the Administration. The execution of the chosen project will be the object of a new bidding process, now under the form of competition, price assessment or invitation, to carry out the work or perform the service”.

The judging committee of the event does not necessarily need to be a public servant, it must have technical knowledge of the service or the purchase of the object to be acquired and have an unblemished reputation. (art. 51, § 5).

The tender modality may also be used to acquire specialized professional technical services, as provided for in art. 13, § 1 of Law No. 8,666/93.

The period between the publication and the holding of the contest will be 45 (forty-five) consecutive days. (Article 21, § 2, I, a).

6.5 Auction

In your art. 22, § 5, of Law No. 8.666/93, defines auction as follows:

“Art. 22 - (...)

§ 5 - Auction is the type of bidding between any interested parties for the sale of movable property unusable for the administration or of products legally seized or pledged, or for the disposal of immovable property provided for in art. 19, to the highest bidder, equal to or greater than the valuation value”. (emphasis ours)

Based on the conceptualization determined by the standard, we must extract the 03 (three) objectives:

I – sale of useless movable property;

II – sale of products legally seized or pledged;

III – disposal of immovable property provided for in art. 19 of Law No. 8,666/93.

The sale of unserviceable movable assets are those that are no longer useful to the Administration, however, are still in perfect condition and can be used for other people.

The sale of legally seized or pawned products must analyze the use of the pawned word in question, since the use of this word in this sentence is part of the critical doctrine.

Since the attachment institute is used in legal action or execution, arising from the Civil Procedure Code, in which attachment means judicial seizure of assets of an executed debtor, for payment of execution and respective costs, judicial execution for payment of a certain amount or appointment of assets to be pledged, indication by the debtor of the assets to be listed for guarantee or payment of debts.

Therefore, scholars understand that the legislator intended to have used the pledged word, that is, the object of the pledge contract.

The objects legally seized would be those originating from smuggling, abandoned at customs, railroad warehouses or public offices in general, as regulated by the Administration.

The alienation of real estate is those obtained through judicial proceedings or payment in kind.

The main characteristic of the auction is the wide dissemination and the goods duly evaluated. (Article 53, §§ 4 and 1).

And the only selection criterion is the best bid.

The auction, unlike the other modalities, does not have a bidding committee, but an official auctioneer or a public servant designated by the Administration.

Its disclosure will take place as follows, 15 (fifteen) days from the publication of the notice to the event (Art. 21, § 2, III).

6.6 Auction

The auction is a recent modality of the bidding, not provided for in Law No. 8,666/93, it was established by Law No. 10,520/02, and its purpose is the acquisition of common goods and services defined by public notice.

The auction is a genre, which is divided into two species: face-to-face and electronic.

It is a special type of bidding, it has no determined value to be used, the law only prohibits situations in which it cannot be used, such as:

I – in contracting engineering works and services;

II – in real estate leases;

III – on disposals in general;

IV – in the purchase and contracting of IT and automation goods and services.

Its procedure is also different from the other modalities, since, in the first trading session, the opening of the proposals is carried out and after this phase, the second phase will proceed, which will open the qualification envelopes of the winning companies.

The period between the publication of the invitation to bid for the opening of bids is 8 (eight) business days.

As it is a new modality with special characteristics, it deserves a separate analysis from the other modalities.

VII - In-person trading and electronic trading modality
It is initially necessary to report a brief history of this type of bidding, regulated by Law No. 10,520/02.

The trading session was one of the modalities adopted by ANATEL, which was instituted and regulated by Federal Law No. 9,472/97, which established in its art. 54, sole §, the use of the auction and consultation as a form of acquisition for the contracting of civil engineering works and services.

The fact that this modality worked within the scope of the Indirect Administration, led to the creation of Provisional Measure No. , since a Provisional Measure could not create a bidding modality, it could only be created through a general rule as established in art. 22, XXVII of CF/88.

After the aforementioned Provisional Measure was edited seventeen times, it was converted into Law No.

As Celso Antonio Bandeira de Mello points out:

“The auction that was born unconstitutional, but that, as a result of Law No. 10.520/02, was validated, as nothing opposes it also being considered a “general rule”.

What Law No. 10,520/02 does not add, Law No. 8,666/93 is used in a subsidiary way.

The auction was instituted with the aim of making the event less time consuming and more competitive, which in practice worked.

Having as a characteristic the reduction of expenses, the reduction of the time necessary for the realization of the event and the possibility of carrying out as many trading sessions as necessary for the same object, without limiting the value for its realization.

Law No. 9,433 of March 1, 2005, in its art. 50, § 4 defines what is a trading session:

Art. 50 - (...)

§ 4 - Auction is the type of bidding aimed at the acquisition of common goods and services, whatever the estimated value of the contract in which the dispute is made by means of written proposals and verbal bids, in a single public session, or through use of information technology resources”.

The auction differs from the other types of bidding governed by Law No. 8,666/93 by aspects that dictate it peculiar, concerning the procedure and the participation requirements, namely:

I – reversal of the stages of qualification and judgment of proposals;

II – replacement of the bidding commission by the auctioneer, who is assisted by a support team;

III – possibility of reformulating the commercial proposals by the bidders, after opening the respective envelopes;

IV – concentration of resources in the final stage of the procedure;

V – peculiarities regarding approval and adjudication.

Trading is divided into two types: face-to-face and electronic trading:

The face-to-face and electronic auctions are provided for in arts. 1 and 2, § 1 of Law No. 10,520/02, electronic trading is regulated by Decree No. 5,450 of May 31, 2005.

The in-person auction is the one that takes place in a public session, through written price proposals and verbal bids, as well as the auctioneer and his support team and the bidders present, thus proceeding to the external phase of the bidding.

In the face-to-face auction, bidders for accreditation must initially present accreditation documents such as: the power of attorney that empowers them to participate in all acts of the bidding, a document that identifies them and the declaration that they meet the qualification requirements.

After accreditation, the proposal envelopes are opened, classifying the 03 (three) best prices among the lowest value proposals, followed by all proposals with prices up to 10% higher than that, to carry out the verbal bids.

If there are not 03 (three) bidders under the established conditions, the law authorizes the maximum number of 03 (three) bidders to exceed, regardless of the value of their bids.

After the bidding phase, the qualification envelopes of the winning bidders will be opened.

After analyzing all the documentation and verifying that all the established requirements have been met, the object is awarded.

If the winning bidder in the bidding phase, in the next phase of the bidding does not comply with the established requirements, the items won by him move to the second lowest price, if the prices are not within the estimated, the auctioneer has the power to negotiate this value.

The external phase of the face-to-face trading takes place in a single session.

The electronic trading is one that takes place by electronic means, using electronic resources permitted by law, such as the internet.

Decree No. 5,450, of May 31, 2005, made mandatory, within the Union, the trading modality for the acquisition of common goods and services, preferably in the electronic modality, which must be used, except in cases of proven unfeasibility ( article 4, §§ 1 and 2).

In the electronic auction, there is no physical presence of the participants, carrying out all the acts of the bidding process online, that is, over the internet.

Accreditation takes place through registration on the official websites, giving the bidder an identification key and a personal and non-transferable password, allowing the accredited to participate in any electronic auction.

The electronic auctions will be carried out with reference to Brasília time, information that must be included both in the notice and in the public notice.

After accreditation, companies interested in participating in the electronic auction must access the site with their key and password and launch their proposal by submitting the respective submission, at the same time they must declare that they comply with the qualification requirements.

Note that this declaration in the face-to-face trading takes place at the time of accreditation, unlike in the electronic trading session.

The systems that work with electronic trading already provide access to such declaration at the time of submission of the proposal.

The bidding phase in the electronic auction, unlike the face-to-face auction in which the 03 (three) best proposals are classified to make the bids, in the electronic auction all companies that sent their proposal can participate in the bids.

Eligibility for electronic trading takes place by consulting the system, which makes available the documentation of registered bidders.

As provided for in art. 4, XIV, of Law No. 10.520/02, in verbis:

Art. 4th – (…)

XIV – bidders may fail to present the qualification documents that are already included in the Unified Registration System for Suppliers – Sicaf and similar systems maintained by States, Federal District or Municipalities, ensuring that other bidders have the right of access to the data contained therein;

This occurs because bidders, in order to obtain their key and password, must register in the system, providing the documentation provided for in the rules that regulate the electronic auction, that is, documents referring to tax authorization, legal authorization and technical and economic-financial qualifications.

Documents not included in the system must be sent via facsimile and after their analysis, the originals must be sent to the bidding body within the period established by the public notice.

In both modalities, if the bidder is not satisfied with the decision, he may file an appeal, adding his reasons and his motivation to file within 03 (three) days, with the other companies having the same period of days to present counter-arguments, which will begin to run from the end of the appellant's term, and they will be assured of an immediate view of the records (Art. 4, XVIII).

If the authority accepts the appeal, it will consequently result in the invalidation of only those acts that are not subject to use (Art. 4, XIX).

After the decision of the appeal, the adjudication of the object of the bidding will be carried out and soon after its approval by the competent authority. (Article 4, XXI and XXIII).

VIII - The changes brought by LC 123/2006 in the bidding processes
LC No. 123/06 established several changes in the bidding processes, among them the possibility for ME and EPP to present their documents regarding tax regularity only at the signing of the contract.

the art. 42 of LC No. 123/06 establishes that:

Art. 42. In public bids, proof of fiscal regularity of micro and small companies will only be required for the purpose of signing the contract.

It is worth mentioning José Anacleto Abduch Santos:

"Fiscal Regularity is the taxpayer's legal-tax-tax condition arising from the effective fulfillment of the tax obligations, main or accessory, imposed by law, or from the submission of the obligation reputed not fulfilled by the Administration to the Judiciary".

In the same sense, Irene Patrícia Nohara says:

"Regularity with social security is a constitutional requirement since art 195, § 3, of the Larger Text provides that: "the legal entity in debt with the social security system, as established by law, will not be able to contract with the Government nor receive tax or credit benefits or incentives from it”.

Therefore, it is necessary to demonstrate fiscal regularity, in order to comply with the provisions of art. 29 of Law nº 8.666/93, even if it is presented in a tarnished way, the ME and EPP will not have the disqualification in the event as a consequence, this is because LC nº 123/06 will give it legal support.

Since, LC No. 123/06, provided the ME and EPP the possibility of presenting the documentation related to tax regularity with some restrictions, which can later be regularized in order to sign the contract.

However, this authorization cannot be a reason for the ME or EPP to fail to present a certain document.

Failure to comply with the provisions of the Public Administration, ME and EPP will be unable to sign the contract, without prejudice to the sanctions provided for in art. 81 of Law No. 8,666/93, and the Administration may call the remaining bidders, in order of classification, to sign the contract or revoke the bidding.

Provides for art. 43, of LC No. 123/06, in verbis:

Art. 43. Micro-enterprises and small businesses, when participating in bidding procedures, must present all the required documentation for the purpose of proving fiscal regularity, even if this presents some restriction.

§ 1 If there is any restriction in the proof of fiscal regularity, a period of 2 (two) working days will be ensured, whose initial term will correspond to the moment in which the bidder is declared the winner of the event, extendable for an equal period, at the discretion of the Public Administration , for the regularization of documentation, payment or installment of the debt, and issuance of any negative or positive certificates with the effect of a negative certificate.

This article is clear, by establishing that even though the ME and EPP have their documentation regarding tax regularity with some restriction on them, they are obliged to present all documentation at the time of the bidding, the rule will admit the reorganization, not the supplementation of documents.

This will not enable or disable the ME or EPP from the bidding process, however, they must later regularize their situation.

According to Eduardo Gonzaga Oliveira Natal:

“This is a different legal regime that creates a permit for micro and small businesses to regularize their tax situation, if they are not in compliance, after the award stage.

Since, ME and EPP, when presenting the documentation with some restriction, cannot be disabled, because, if they were declared disabled, under the terms of art. 41, § 4 of Law nº 8.666/93, the right to participate in the subsequent phases would be precluded, in the cases of the invitation, price assessment and competition modality, where the bidding process begins with the qualification.

Therefore, there remains the possibility described in art. 43, § 1 of LC No. 123/06, on the possibility of regularizing such situation within two working days, extendable for the same period if it is in the interest of the Public Administration.

However, there is a certain obstacle to micro-entrepreneurs or small businesses, since, due to bureaucracy, it is difficult to regularize documents within the period established by the norm.

Furthermore, as Jonas Lima explains:

“These specific rules for regularizing tax documents tend to delay procedures that could be closed in the same session, such as in-person and electronic trading sessions”.

What would be a way to facilitate the participation of ME and EPP in the bidding events, ends up becoming a big problem for these companies that, when participating and winning the present event, being irregular with their tax situation, they will have to regularize anyway. with the tax authorities, as otherwise they will result in non-contracting and may still suffer the penalties provided for in art. 81 of Law No. 8,666/93.

Another discussion is at what moment the two-day period would be given for companies to regularize their situation and present the Commission:

According to José Anacleto Abduch Santos:

There are two possible hypotheses, which are: “the first interpretation is in the sense that proof of fiscal regularity can only be required after the award of the object, as the law determines that proof will only be required for the purpose of signing the contract (Art. 42, caput)”.

To James Marins and Marcelo M. Bertoldi:

"Fiscal regularization must occur a posteriori of the result already approved and awarded".

In this sense, those who defend this current argue that the request for tax regularization before the award of the object would imply the restriction and limitation of the bidder to prove its tax regularity, since the rule only requests this regularization at the time of signing the contract.

The other hypothesis in the understanding of José Anacleto Abduch Santos would be:

"That proof of fiscal regularity must occur in the course of the procedure, after the moment in which the qualified bidder is declared the winner".

At this moment, the Public Administration would be entitled to request from the winning bidder its tax regularization within two working days, which in the opinion of the present author would be more plausible and would be in line with the rule.

As stipulated in art. 43, § 2 of LC No. 123/08:

Art. 43 - (...)

§ 2 The non-regularization of the documentation, within the period provided for in § 1 of this article, will imply the decay of the right to contract, without prejudice to the sanctions provided for in art. 81 of Law No. 8,666, of June 21, 1993, the Administration being entitled to call the remaining bidders, in order of classification, to sign the contract, or to revoke the bidding.

That is, in the event that the ME or EPP does not remedy the documentation, or if the documentation delivered is not accepted, the Administration must issue an administrative act of disqualification, which may also support the exercise of the right to petition, declaring the winner as a result. second place in the contest.

According to Edgar Guimaraes:

"The non-regularization of the tax qualification within the legal term is equivalent to the refusal to sign the contract, characterizing the total non-fulfillment of the obligation".

Therefore, in addition to the fact that the ME or EPP cannot contract with the Public Administration, they will still be subject to the penalties indicated in art. 81 of Law No. 8666/93, which must be preceded by a contradictory and full defense, as well as, must arise from a situation that cannot be justified by the ME or EPP.

Pray the art. 44 of the law in question:

“Art. 44. As a tie-breaking criterion, in the bidding process, preference will be given to hiring micro and small companies.

§ 1st A tie is understood to be those situations in which the proposals presented by micro and small companies are equal to or up to 10% (ten percent) higher than the best classified proposal.

§ 2 In the trading modality, the percentage interval established in § 1 of this article will be up to 5% (five percent) higher than the best price.”

the art. 44 of LC No. 123/06, establishes the tie-breaking criterion for ME and EPP in bids, apart from those already determined by Law No. 8,666/93, in its arts. 3, § 2 (preferences for companies) and 45, § 2 (draw).

In the understanding of Jonas Lima:

“This is not a “tie” situation, but a real possibility for the Microenterprise or Small Business to be able, if desired, to exercise the “faculty” to “cover” the offer of the other company, not included in the law".

According to Jair Eduardo Santana and Edgar Guimarães:

"LC nº 123/06 created the situation in which it considers proposals artificially tied that originally would not be visible in their concrete and real expressions".

According to Jonas Lima:

“This is a rule that aims to give small companies a chance to make a last-ditch effort to win the account, and thus begin to enter or increase their share in the government contracting market.”

The criterion established in art. 44 of LC nº 123/06, consists of breaking the tie in favor of ME or EPP, if it happens to tie with a company that does not have the same qualification.

In bids in which ME or EPP participate, the criterion of LC No. 123/06 will prevail over the tie-breaking criteria provided for in the Statute of Bidding and Contracts.

Analyzing art. 44 and its paragraphs, it is defined as a tie those situations in which the proposals presented by the ME or EPP are of value up to 10% (ten percent) higher than the best classified proposal, but this percentage is reduced when it comes to the application in the trading modality, reducing the threshold to 5%, since it understands that in this modality, as a result of the dispute through bids, the value of the product has already been significantly reduced.

Therefore, in these situations the law creates the so-called fictitious tie.

According to Jair Eduardo Santana and Edgar Guimarães:

“I fictionalize because he's not real; it is an imagined, invented, feigned, false or simulated tie. But, valid because the legal order so established”.

In cases of a fictive tie, preference for the tiebreaker will be given to ME and EPP, according to art. 45 of LC No. 123/06, in verbis:

Art. 45. For the purposes of the provisions of art. 44 of this Complementary Law, in the event of a tie, it will be done as follows:

I – the best-ranked micro-enterprise or small business may submit a proposal for a price lower than the one considered to be the winner of the bidding process, in which case the tendered object will be awarded in its favor;

II – if the micro-company or small-sized company is not contracted, pursuant to item I of the caput of this article, the remaining members that may fall within the hypothesis of §§ 1 and 2 of art. 44 of this Complementary Law, in classification order, for the exercise of the same right;
III – in the case of equivalence of the values presented by micro and small companies that are in the intervals established in §§ 1 and 2 of art. 44 of this Complementary Law, a draw will be held among them in order to identify the one that can present the best offer first.
§ 1 In the event of non-contracting under the terms provided for in the caput of this article, the bid object will be awarded in favor of the proposal originally winning the bidding process.

§ 2 The provisions of this article will only apply when the best initial offer has not been presented by a micro-company or small business.

§ 3 In the case of a trading session, the best classified micro-company or small business will be called to present a new proposal within a maximum period of 5 (five) minutes after the closing of the bids, under penalty of estoppel.

The tiebreaker may occur in several ways, as regulated by art. 45 of LC No. 123/06, that is, one of the hypotheses would be for the interested party to submit a proposal with a price lower than the one it considers to be the winner of the contest, and then it would win the contest. And in the case of the trading modality, the ME or EPP will have to present a new proposal within 05 minutes after the closing of the bids, under penalty of estoppel.

According to James Marins and Marcelo M. Bertoldi:

“There will be no immediate contracting of the proposal presented by the small company along the lines initially offered; the rule of this provision confers the option of altering the initial value of the proposal of the small company in relation to that presented by the other company”.

In this sense, Eduardo Gonzaga de Oliveira Natal says:

“The best proposal presented, which is within the legally stipulated percentage limit, is that it will grant the micro-company or small business the right to reformulate the bid”.

In cases where the negotiation is not successful, the Bidding Committee will go to the second tie-breaking criterion, that is, it will call the remaining ones that may fall within the hypotheses of §§ 1 and 2 of art. 44 of LC No. 123/06, in order of price classification.

However, if there is an equality of prices between companies classified in LC nº 123/06, for the purpose of breaking the tie, a draw must be carried out, thus identifying who will be the winner of the event.

According to Eduardo Gonzaga de Oliveira Natal:

“The draw can only take place if the values presented consist of the best proposal and are identical, because, if there is a single proposal that is more advantageous for the public administration, as long as it is presented by a micro-company or by a small business, it will not have to be triggered. any effect of the legal regime of the rules of the right of preference”.

If there is no possibility of contracting with the ME or EPP, which participate in the event, the bid object will be awarded in favor of the original winning proposal of the event.

It should be noted that this tie-breaking criterion provided for in art. 45, can only be used when the initial proposal has not been presented by ME or EPP.

the art. 46 of LC No. 123/06, provides for the possibility of issuing a micro-enterprise credit card, in verbis:

Art. 46. Micro-enterprises and small businesses holding credit rights arising from commitments settled by bodies and entities of the Union, States, Federal District and Municipality not paid within 30 (thirty) days from the settlement date may issue a credit note microenterprise.

Single paragraph. The micro-enterprise credit note is a title of credit governed, subsidiarily, by the legislation provided for commercial credit notes, backed by the commitment of the public power, and the Executive Branch is responsible for its regulation within a period of 180 (one hundred and eighty) days from the date of publication of this Complementary Law.

When the commitments issued by the Public Administration in favor of the ME or EPP are not paid within 30 (thirty) days, the ME or EPP will be able to issue a micro-enterprise credit note.

Despite the fact that the aforementioned article is disciplining in the chapter on market access, the present matter does not have to do with bidding processes, but with the payment of amounts resulting from them.

But this article does not have immediate application, it needs regulation by the Chief Executive.

According to Irene Patricia Nohara:

“It is, therefore, an extrajudicial enforceable instrument, so its drawer or whoever has negotiated the paper with him, through the endorsement, may file an extrajudicial instrument execution against the State, without the need to file a knowledge action, which lends itself to obtaining a judicial title.”

Art. 47 to 49, of LC 123/06, to be commented together in view of the uniqueness of the matter:

Art. 47. In public contracts of the Union, States and Municipalities, differentiated and simplified treatment may be granted to micro and small companies aiming at promoting economic and social development at the municipal and regional level, increasing the efficiency of public policies and the incentive to technological innovation, provided that it is foreseen and regulated in the legislation of the respective entity.

Art. 48. In order to comply with the provisions of art. 47 of this Complementary Law, the public administration may carry out a bidding process:

I – exclusively intended for the participation of micro and small companies in contracts whose value is up to R$ 80,000.00 (eighty thousand reais);

II – in which bidders are required to subcontract a micro-enterprise or small business, provided that the maximum percentage of the object to be subcontracted does not exceed 30% (thirty percent) of the total bid;

III – in which a quota of up to 25% (twenty-five percent) of the object is established for the contracting of micro and small companies, in tenders for the acquisition of goods and services of a divisible nature.

§ 1 The value bid through the provisions of this article may not exceed 25% (twenty five percent) of the total bid in each calendar year.

§ 2 In the case of item II of the caput of this article, the commitments and payments of the public administration body or entity may be allocated directly to micro and small subcontracted companies.

Art. 49. The provisions of arts. 47 and 48 of this Complementary Law when:

I – the criteria for differentiated and simplified treatment for micro and small businesses are not expressly provided for in the invitation to tender;

II – there is not a minimum of 3 (three) competitive suppliers classified as micro-enterprises or small businesses located locally or regionally and capable of meeting the requirements established in the invitation to tender;

III – the differentiated and simplified treatment for micro and small companies is not advantageous for the public administration or represents damage to the set or complex of the object to be contracted;

IV – the bidding is expendable or unenforceable, pursuant to arts. 24 and 25 of Law No. 8,666, of June 21, 1993.

the art. 47 refers to the Administration's faculty of favoring ME and EPP in bids, each entity of the federation enacting its own legislation that grants differentiated and simplified treatment for micro and small businesses.

the art. 48 of LC No. 123/06, allows the Administration to carry out bids for ME and EPP only, provided that the estimated value of the contract does not exceed R$ 80,000.00.

Analyzing this situation, it is clear that the legislator did not make any difference regarding the object, type of bidding or type of judgment, since the only and exclusive criterion is the value of the contract. This does not, however, prevent the other entities of the federation, when carrying out the adaptation of their legislation, from imposing new restrictions on the object, modality or criterion of judgment,

The establishment of a quota of up to 25% of the object for the contracting of ME and EPP, in tenders for the acquisition of goods and services of a divisible nature.

It is a way of allowing ME and EPP to supply goods, services and works to the Administration in smaller quantities than those that were bid on, since, in principle, they would not be able to meet the amount, because it allows the division of the object into several lots within a single bidding procedure.

It should be noted that the stipulated in art. 48 of LC nº 123/08 cannot exceed 25% of the total bid in each calendar year.

The Public Administration may not apply the provisions of art. 47 and 48 of LC No. 123/06, when the use of differentiated and favored treatment does not bring any benefit to it; when there is not a minimum of 3 competitive suppliers classified as ME or EPP; when the use of the criteria established in the respective articles does not bring any advantage to the Administration or in cases where the bidding is expendable or unenforceable, according to arts. 24 and 25 of Law No. 8,666/93.

IX - The principle of isonomy and its applicability in LC 123/2006
Isonomy is a basic principle that has its origin in the Federal Constitution of 1988, it guides all the law, since it consists of treating everyone equally.

In administrative law, it would be no different, since the principle of isonomy is one of the principles that guide the entire bidding process.

But what everyone treats equally, in the same proportionality without discriminating against anyone, isonomy in the bidding process aims to ensure equality of conditions for all competitors.

There are, however, many points within this principle that, of course, will be observed so that the bidding can represent the opportunity to serve the public interest by individuals, in an egalitarian and lawful way. To this end, individuals who compete in bidding processes always have legal means of ensuring their rights, ensuring fairness and efficiency for carrying out the administrative process.

Seen from this horizon, we can observe that in the bidding procedure the principle of isonomy is a complete instrument, guiding the entire process.

The principle of isonomy would remain empty of meaning if the legislator itself had not established, and in the case of the Law on Tenders expressly, the means to operationalize them. In order to anchor this principle in the legal system, it declared that all those who participate in the bidding have a subjective public right to faithfully observe the procedure established by law, extending to all citizens the right to monitor its development.

Being an essential principle to the event and if it is not attended in the correct way, it remains for the one who feels wronged, to seek his right through administrative appeal or in the last resort judicially.

Therefore, from this perspective, LC nº 123/06, one can discuss the constitutionality of the respective rule, is that the entire legal system of the bidding was built to search for the most advantageous proposal, only after meeting the principle of isonomy.

As for ME and EPP, the Federal Constitution allows for the simplification of their administrative, tax, social security and credit obligations or for the elimination or reduction of these, but does not establish that this preference can compromise isonomy.

In this sense, Jair Eduardo Santana and Edgar Guimarães have:

“Differential treatment, therefore, should not go beyond what is strictly necessary to eliminate the differences between small and large companies, under penalty of violating the principle of isonomy”

However, many scholars claim that there is no unconstitutionality in LC nº 123/06, because, like the principle of isonomy, the principle of differentiated and favored treatment was also determined by the Constitution.

In this sense, José Anacleto Abduch Santos provides:

“Such a principle must coexist harmoniously with the legal system, with other constitutional principles and values, and must certainly be considered when solving specific cases”.

To Eduardo Gonzaga Oliveira Natal:

“The installation of the conflict based on the principle of isonomy is incorrect, since micro and small companies would be essentially different from other companies that do not make up the concept provided for in “Chapter II” of Complementary Law No. 123/06.”63

It seems evident that simplification unequals companies. A deeper examination of the institute reveals, therefore, that isonomy does not impose equal treatment on everyone without distinction, insofar as there is no absolute equality.

According to José Anacleto Abduch Santos:

“By instituting differentiated and favored treatment for ME and EPP, the Complementary Law does not violate the principle of isonomy because it starts from the premise that they are not the same as large companies. The legal (and factual) premise that MEs and EPPs are not equal to large companies makes it possible to give them unequal treatment”.

By creating norms that privilege a certain sector of society, the legislator seeks to reduce pre-existing inequality, in order to equate the principle of isonomy in the measure of inequality essential to the efficient satisfaction of the public interest.

Furthermore, the scope of the principle of isonomy is not restricted to leveling citizens in the face of the legal norm set, but that the law itself cannot be edited in disagreement with isonomy.

The isonomy between the competitors of a bidding process admits the differentiated treatment between unequals for the determination of the real extension of their universe.

In other words, the legislator, by establishing a differentiated and favored treatment for ME and EPP, does not, in itself, offend isonomy, the right of other companies and people to equality. The legislator, on the contrary, complies with the principle of isonomy, insofar as it privileges those who the Federal Constitution itself established that deserves to be privileged.

X - Conclusion
The debate about the alternatives contemplated in Complementary Law nº 123/2006 to promote incentives and differentiated treatment for Micro and Small Businesses is of great social importance, especially with regard to the prerogatives established in Public Tenders, as they represent large public resources. involved.

The present study highlighted that the public bidding has as main objective to select the most advantageous proposal for the Public Administration, and consequently the satisfaction of the public interest.

Regarding the principle of isonomy, that is, treating equals equally and unequals unequally, to the extent of their inequalities, it should be noted that the legislator fully complied with this principle, given that the Federal Constitution itself established that ME/ EPP deserve to be privileged.

We also address the fragility of the principles of isonomy, impersonality and morality when applying the subcontracting rule reserved for small companies. Such subcontracts can mean substantial amounts and the criteria for choosing the subcontractor are not defined in the Law. This situation unreasonably exposes the morality, impersonality and isonomy of Public Administration.

Finally, it is concluded that such policies will be able to reach, in an unrestricted way, all micro and small companies formally constituted in the country, in order to make them more competitive, not only from the point of view of public contracts, but, above all, , able to participate in the global economy.

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