Modalidades de licitação e a influência do formalismo administrativo

Abstract

This work deals with the influence of administrative formalism in bidding, delimited in the modalities expressed in Law No. 14,133/21, with the aim of verifying how the departure from administrative formalism influences the quality of the bidding process. The research method used was the historical study of legislation, together with the interpretations and theoretical analyzes made by the various authors who analyze the topic. Firstly, we sought to conceptualize the term “bidding”, and then carry out research regarding historical evolution, since, when we think about “influence”, it is necessary to understand the events that led to the legislation that regulates the bidding process in the days current. Recent changes in Brazilian legislation stand out, such as the repeal of Law No. 8,666/93, being succeeded by Law No. 14,133. Thus, it is possible to see how in each period of administration, the legislator tried to convert the limited interaction that society had with public authorities in contractual relations. The research presents a study of the principles that govern public administration, in the preparation and execution of bidding procedures, revealing the link they have with the objectives and purposes of the bidding process. It also addresses the bidding modalities available for choosing the public administration, citing the requirements for its qualification, highlighting the figure of the public contracting agent, introduced among the many new features by Law No. 14,133/21. Finally, it intends to answer the following problem: The effect of the rigid formalism inherited from Law No. 8,666/93, how it influenced the way in which the legislator brought the instrument of competitive dialogue into the norms of Brazilian law, imposing requirements that make it ineffective, when one of the main objectives in a bidding process is to obtain the contracting of a service that the public authority is not capable of providing, due to a lack of resources to provide the service to the community or due to a lack of technical knowledge about the object to be acquired.