Participation of bidders in consortium
Posted: Sun Dec 22, 2024 5:30 am
The term consortium is included in article 33 of the Bidding Law. This regulation allows companies to come together to meet all the specialties required for the competition or even to meet the minimum quantities of each service required in the notice as a technical qualification requirement.
In short, the consortium allows small companies to come together with others of equal or greater size, so that they can combine sufficient technical experience to perform all types of services inherent to a given undertaking and also meet the technical qualification requirements established in the notice.
For this reason, when it comes to a large-scale project that includes works and equipment, allowing companies to participate in a consortium is a good instrument for increasing competitiveness.
With this permission, a company specialized in civil construction joins forces with another specialized in installing laboratory equipment, for example. This ensures broad participation, while resolving all logistical problems arising from the systematic nature of the work.
Given the relevance of the topic, it is worth mentioning, in this regard, an important precedent from the TCU that examined the contracting of works, services and supplies necessary for the Implementation and Complementation of the Alcântara Launch Center and the Alcântara Space Center1.
In that ruling, the Court recognized the formation of consortia as a way of materially dividing the object, which may be more favorable to the Administration than the division of the object. See the position of the reviewing minister, endorsed by the Court's Plenary:
9. In fact, in addition to the possibility of promoting a bidding process for isolated contracting in each block or lot, the administration may also opt for isolated contracting that covers the entire object of the email database australia agreement, but, in this case, as long as it allows the participation of companies in a consortium.
10. Given the circumstances, the division of the object would not be mandatory, but rather desirable, and could be achieved either by the formal division of the object, through the aforementioned configuration of blocks or lots, or by the so-called material division, through permission for companies in consortia to participate in the contest.
11. This results in the aforementioned material division of the object, since small and medium-sized companies interested in the adjustment may organize themselves into consortia, ensuring, in the exact terms of Item 9.1.1 of the ruling offered by the distinguished Rapporteur, compliance with the principles of competitiveness and equality, without neglecting to obtain the most advantageous proposal for the Administration.1
The recommendation set out in the judgment was as follows:
9.1. determine to the Brazilian Space Agency - AEB that: considering the provisions of art. 23, § 1, of Law 8.666/93, as amended by Law 8.883/94, and in Summary 247 of the Court, carry out the subdivision of the object of the bidding to be promoted with a view to contracting the works, services and supplies necessary for the Implementation and Complementation of the Alcântara Launch Center and Alcântara Space Center, and must previously proceed, in order to substantiate the choice of the form of configuration of the 'blocks' or 'lots' to be formed based on the subdivision, to technical studies that consider the market characteristics and that indicate the division alternative that best satisfies the principles of competitiveness, equality and obtaining the most advantageous proposal for the Administration, respecting the limitations of a technical nature, without prejudice to carrying out isolated contracting of the entire complex or set with a bidder, but, in this case, provided that the participation of companies in a consortium in the bidding is expressly permitted, as a way of ensuring the material subdivision of the object, respecting the rules prescribed in art. 33 of Law 8.666/93.
In this case, there is a huge gain in efficiency for the Administration, as the desired concentration of responsibility and logistics is maintained in a single person – the contractor – who, in fact, is an association of companies with different activities and specialties.
In short, the consortium allows small companies to come together with others of equal or greater size, so that they can combine sufficient technical experience to perform all types of services inherent to a given undertaking and also meet the technical qualification requirements established in the notice.
For this reason, when it comes to a large-scale project that includes works and equipment, allowing companies to participate in a consortium is a good instrument for increasing competitiveness.
With this permission, a company specialized in civil construction joins forces with another specialized in installing laboratory equipment, for example. This ensures broad participation, while resolving all logistical problems arising from the systematic nature of the work.
Given the relevance of the topic, it is worth mentioning, in this regard, an important precedent from the TCU that examined the contracting of works, services and supplies necessary for the Implementation and Complementation of the Alcântara Launch Center and the Alcântara Space Center1.
In that ruling, the Court recognized the formation of consortia as a way of materially dividing the object, which may be more favorable to the Administration than the division of the object. See the position of the reviewing minister, endorsed by the Court's Plenary:
9. In fact, in addition to the possibility of promoting a bidding process for isolated contracting in each block or lot, the administration may also opt for isolated contracting that covers the entire object of the email database australia agreement, but, in this case, as long as it allows the participation of companies in a consortium.
10. Given the circumstances, the division of the object would not be mandatory, but rather desirable, and could be achieved either by the formal division of the object, through the aforementioned configuration of blocks or lots, or by the so-called material division, through permission for companies in consortia to participate in the contest.
11. This results in the aforementioned material division of the object, since small and medium-sized companies interested in the adjustment may organize themselves into consortia, ensuring, in the exact terms of Item 9.1.1 of the ruling offered by the distinguished Rapporteur, compliance with the principles of competitiveness and equality, without neglecting to obtain the most advantageous proposal for the Administration.1
The recommendation set out in the judgment was as follows:
9.1. determine to the Brazilian Space Agency - AEB that: considering the provisions of art. 23, § 1, of Law 8.666/93, as amended by Law 8.883/94, and in Summary 247 of the Court, carry out the subdivision of the object of the bidding to be promoted with a view to contracting the works, services and supplies necessary for the Implementation and Complementation of the Alcântara Launch Center and Alcântara Space Center, and must previously proceed, in order to substantiate the choice of the form of configuration of the 'blocks' or 'lots' to be formed based on the subdivision, to technical studies that consider the market characteristics and that indicate the division alternative that best satisfies the principles of competitiveness, equality and obtaining the most advantageous proposal for the Administration, respecting the limitations of a technical nature, without prejudice to carrying out isolated contracting of the entire complex or set with a bidder, but, in this case, provided that the participation of companies in a consortium in the bidding is expressly permitted, as a way of ensuring the material subdivision of the object, respecting the rules prescribed in art. 33 of Law 8.666/93.
In this case, there is a huge gain in efficiency for the Administration, as the desired concentration of responsibility and logistics is maintained in a single person – the contractor – who, in fact, is an association of companies with different activities and specialties.