by Gabriel Tosi
The primary form of administrative contract through which the Brazilian State promotes large-scale infrastructure projects with significant socioeconomic impact is the bidding process.
As it represents an agreement between the Public Administration and a private company or administrative entity for the achievement of public interest goals, it is subject to exceptional prerogatives and specific regulation through the new Bidding Law No. 14,133/2021.
By replacing the former Law No. 8,666/1993, the new Law introduced significant transformations in the legal regime of bidding and administrative contracts. It modernized the bidding process by seeking greater transparency, efficiency, and legal certainty, while also adopting stricter mechanisms to prevent fraud, combat corruption, and other illicit practices in public procurement processes.
Among the main changes brought about by Law No. 14,133/2021 is the use of more flexible bidding modalities, with the adoption of the so-called “electronic auction” as a rule.
In the criminal context, an expansion of control and accountability mechanisms was implemented, encompassing from document fraud to collusion between companies and corruption. It includes actions such as illegal direct contracting, frustration of the competitive nature of the bidding process, sponsorship of improper contracts, modification or irregular payment of contracts, disruption of the bidding process, violation of confidentiality, exclusion of bidders, fraud, improper contracting, undue restrictions, among others.
The new Law brought modifications to the criminal conducts themselves, improving their wording to be more objective and aligned to the standard of the Brazilian Criminal Code. It also added a new criminal conduct, namely the “severe omission of data or information by a project designer”, which, despite the name, also includes the possibility of the crime being committed through the agent’s actions.
Despite the new crime added, it is true that the other bidding crimes of the new legislation were already present in the previous law (Law No. 8,666/93), which presented them in a separate section.
Now, this specific and separated section, dedicated to criminal matters, was abolished, enhancing the administrative nature of Law No. 14,133/2021.
Thus, the legislator adopted a more technically appropriate approach, introducing an amendment to the Brazilian Criminal Code, adding a new Chapter II-B to Title XI of the Special Part, which covers crimes against public administration. This new chapter is dedicated to crimes in bidding and administrative contracts.
Furthermore, penalties for committing illicit acts were significantly increased, for example, in the crimes of “illegal direct contracting” (art. 337-E) and “frustration of the competitive nature of bidding” (art. 337-F). Also, the penalty for fines (art. 337-P) was substantially altered and created a significant discrepancy with the Brazilian Criminal Code system for fine calculating (art. 49).
It is important to highlight that the crimes of the new legislation require the presence of dolo (intent) as the subjective element, that is, the free and conscious will to commit the criminal act. There is no provision for negligent conduct or mere formal subsumption of the conduct under the definition of the crime.
In summary, Law No. 14,133/2021 represents an important advance in the Brazilian bidding regime, not only by modernizing and bringing greater flexibility and transparency to the bidding process, but also by creating a more robust system of control and punishment for illegal practices.
Thus, the criminal implications it introduces play a crucial role in fostering a safer and more trustworthy environment in the public sector, serving as a deterrent against fraud and corruption, elements that have historically undermined the efficiency of public procurement in Brazil. The strictness of the criminal sanctions can function as a preventive factor, encouraging both public and private agents to act within the legal and ethical boundaries established by the new legislation.
