These are cases in which the public authority does not need to carry out the complete bidding process to purchase a good or contract a service.
However, the government can only carry out this type of public purchase on specific occasions, described in law and with a justification.
Want to know more about the waiver of bidding? In which cases it can and cannot occur? Then read the text below!
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What is the waiver of bidding?
What is the waiver of bidding?
The waiver of bidding is a way for the public authorities to make purchases or contracts without having to carry out a bidding process.
At first glance, it may seem that this is a way for the government to not be transparent in its public purchases, however, from an economic point of view for the public authorities, it makes a lot of sense to use the bidding waiver.
This is because bidding processes, despite being simple, are relatively expensive, as it is necessary to involve a series of public officials so that the purchase or contracting takes place within all legal norms and with transparency.
For this reason, bidding procedures only make economic sense when the values of the goods and services purchased are greater than the costs of a complete bidding process.
It's simple: it doesn't make sense to start a bidding process for a small purchase, as the costs of implementing this procedure would be greater than the amount spent on purchasing the asset, making the entire process more expensive.
It was to address these and other issues, such as emergencies and public calamity situations (natural disasters, water crises, health crises, etc.), that the waiver of bidding was created.
In other words, although it may not seem like it at first, the exemption from bidding can be a way for a public authority to maintain the principles of economy (when the value of the asset does not compensate for carrying out a bidding process) and efficiency (in cases of public calamity).
And what does the Law say?
The New Bidding Law, Law No. 14,133/21 , discusses the subject in “Section III - Exemption from Bidding” in Article 75, where it reads:
Art. 75. Bidding is not required:
I - for contracts involving amounts less than R$100,000.00 (one hundred thousand reais), in the case of engineering works and services or motor vehicle maintenance services;
II - for contracts involving amounts less than R$50,000.00 (fifty thousand reais), in the case of other services and purchases; (...)
VII - in cases of war, state of defense, state of siege, federal intervention or serious disturbance of order;
VIII - in cases of emergency or public calamity, when there is an urgent need to respond to a situation that may cause harm or compromise the continuity of public services or the safety of people, works, services, equipment and other public or private assets, and only for the acquisition of the assets necessary to respond to the emergency situation... (...)
In other words, as we can see, the bidding process is only dispensable in specific cases, such as purchases below R$50,000.00 and for contracting engineering works and services or maintenance of motor vehicles below R$100,000.00.
This is a great opportunity for small and medium-sized entrepreneurs to start selling to the government .
Is waiving bidding illegal?
Waiver of bidding is illegal
No. The waiver of bidding is a legal mechanism for the government to carry out public purchases without having to carry out bidding processes.
However, as we saw in the previous topics, the waiver of bidding can only occur in cases that are described in the law to be legal.
Apart from the exceptions described in the law, any exemption from bidding is illegal.
In other words, dispensing with or not requiring a bidding process in any circumstances other than those provided for by law is a crime that can result in 3 to 5 years in prison.
For what reasons can bidding be waived?
For what reasons can bidding be waived?
As we have seen, the waiver of bidding can occur in several situations mobile phone number database described by law. Check out the main reasons for waiving bidding below:
Emergency situations: in cases of war, serious disturbance of order, public calamity, works to prevent landslides, breaking down barriers, supplying energy, purchasing hospital equipment, social assistance for disaster victims, etc.
Fraud: in the event of fraud during a bidding process, the public authority may be exempted from bidding for a minimum period to readjust the proposals in accordance with the terms of the notice;
Intervention in the Economic Domain: when there are actions such as price freezing or price controls;
Between Public Administration entities: can only occur when there are no private or mixed economy companies that can provide or offer the same goods and services, such as the Official Press, data processing, recruitment, selection and training of civil servants in the administration, etc.
Low-value contracts: materials, products, services and works that do not have a significant value and that do not exceed the value stipulated by law.
To supplement contracts: materials, products, services, works in the event of contract termination, provided that the bidding classification order is followed and the same conditions offered by the winning bidder are accepted, including the price, which must be duly corrected;
Absence of interested parties: when there are no interested parties in the object of the bidding, it is possible to obtain a waiver;
Compromise of National Security: when the President of the Republic, faced with a specific case, after hearing the National Defense Council, determines the contract with the discarding of bidding;
Property for the Administration: for the purchase or lease of property for services, the choice of which depends on the installation and location needs, provided that the price is compatible with the market value according to a prior assessment. The administration must also formalize the lease if it is temporary or purchase it if it is permanent.
Perishable Goods: purchases of fruit and vegetables, bread and other perishable goods during the time necessary to carry out the corresponding bidding process.
Teaching, research and social rehabilitation of prisoners: when hiring a Brazilian institution dedicated to the social rehabilitation of prisoners, provided that it has an unquestionable ethical and professional reputation and is not for profit in the implementation of its functions;
International Agreement: used only for the acquisition of goods when it is proven that the conditions offered are advantageous for the public authorities;
Works of Art and Historical Objects: the application of the bidding exemption is only justified in cases where the purpose is to rescue a piece or restore it if it is important for the composition of the national artistic and historical collection;
Acquisition of Components under Warranty: in cases where the acquisition of components or materials necessary for the maintenance of equipment during the warranty period. In such cases, the administration must purchase the items from the original supplier of the equipment, when the condition of exclusivity is essential for the validity of the warranty period;
Supply in Transit: for the supply of vessels, ships, troops and their means of transportation when in a short period of time, for reasons of operational movement that is proven and that compromises the normality and purposes of the operation. The value may also not exceed the limit provided for by law for the exemption of bidding;
Purchase of materials for use by the armed forces: subject to verification according to the material, highlighting that purchases of material for personal and administrative use are subject to normal bidding;
Association of people with physical disabilities: hiring these associations must meet certain requirements, such as being non-profit, proving suitability and offering a price compatible with market practice.
Does the exemption from bidding compromise transparency?
If the waiver of bidding is done correctly, it does not compromise the transparency of public accounts, because, although the body does not need to promote a bidding process, it must still prepare an administrative process for the purchase .
In this process, the public body must specify the product or service acquired, as well as its purpose and application.
The public body also needs to carry out market research to identify the reference value, that is, the average price of the item or service.
Based on this and other information, the public body must then justify the purchase, based on the law to define which of the hypotheses this bidding waiver falls under, as well as which company will be contracted, demonstrating that it has adequate capacity and prices.
In this way, it is possible to maintain the transparency of public accounts even at times when it is necessary to waive bidding.
If there is no bidding, will I still be able to sell to the government?
If there is no bidding, I will still be able to sell to the government
Yes. Even in cases where there is no bidding, it is still possible to sell to the government, however, this process is done through direct contracting.
How does direct hiring work?
Normally, in direct contracting, the government tries to choose companies that have already won bidding processes and are already suppliers, as this makes it easier for the government to justify its decision, as it will not need to attest to the quality of a new company.
Therefore, in direct contracting, the public authority contacts a company chosen to supply a product or perform a service.
Remembering that this entire process must be justified so that there is no breach of transparency during the process.
How to participate in a waiver on the Public Procurement Portal?
On the Public Procurement Portal, you can participate in bidding waiver processes for free! Simply register for free on the Bidding Notice!
The free plan of the Public Procurement Portal, in addition to offering you personalized bidding notices three times a week, also gives you the right to participate in waivers carried out on our website!
Now, if you want to sell even more to the government, you can't miss our monthly plan, which will allow you to participate in all bidding modalities available on the Portal.
As you win bids through our Portal, you will see your relationships with the public authorities becoming increasingly closer.
This way, when there is a bidding waiver process, your company will have a better chance of being hired.
Check out the Public Procurement Portal's supplier plans!
Conclusion
conclusion waiver of bidding
As we have seen throughout the text, the waiver of bidding can only occur in specific cases, such as when the value of the item or service purchased does not compensate for holding a contest.
Furthermore, situations such as catastrophes, public emergencies, cases of war or a state of siege, for example, are also occasions in which the public authorities do not need to hold a tender.
If done correctly, the waiver of bidding does not compromise the transparency of public accounts, since the agency needs to justify the purchase and prove the technical capacity of the contracted company.
For this reason, the government tends to do business with companies it already knows and that have sold to it before, as this makes it easier to justify.