A nova lei de licitações e contratos administrativos e o controle externo: análise da constitucionalidade dos deveres e/ou limitações impostos aos tribunais de contas

Abstract

The New Bidding and Contracting Law (Law no. 14133, April 1, 2021) adds sparse rules that are part of legal and infra-legal diplomas that pertain to bidding procedures and presents innovations when compared to Law no. 8666/1993, ratifying the experience of the Government players over the years and the guidelines of the Federal Audit Court, without, however, completely discarding the model that was in effect until then. Among the innovations, the provisions in section 171 (§§1 and 3) stand out, which establish that when suspending the bidding process as a precautionary measure, the audit courts must definitively decide on the merits of the irregularity that gave rise to the precautionary suspension within a period of up to 25 (twenty-five) working days, extendable for an equal period, and that the decision that examines the merits of the precautionary measure must necessarily define the appropriate measures for settling the process or determine its shelving. In this context, Judgment no. 2463, from the Federal Audit Court Plenum determined the representation towards the Prosecutor General and the forwarding of a representation copy to the Members Association of the Brazilian Audit Courts (ATRICON), with the aim of filing a direct action of unconstitutionality before the Supreme Court regarding these provisions. The purpose of the representation is the declaration of the formal and material unconstitutionality of the expression "within 25 (twenty-five) working days [...]", contained in section 171 (§1), as well as section 171 (§1, II and §3), all of Law no. 14.133/2021, for violating sections 18, 25 (caput and §1), c/c sections 71, 73, 75 and 96, of the Constitution of 1988. It was requested, as a claim, from the Federal Constitution an interpretation in accordance with the Constitution of the aforementioned expression, making it compatible with the terms of sections 71 and 73 (§§3 and 4) of the Federal Constitution. This research aims to analyze the constitutionality of section 171 (§§1 and 3), Law no. 14.133/2021, considering the possibility of undue interference in the organization and functioning of the Audit Courts and the attribution of the typical function of public manager to the respective courts. The research problem was the analysis of the material and formal constitutionality of section 171 (§§1 and 3), Law no. 14133/2021 and the approach to the theme was based on theoretical research, with the adoption of a legal-dogmatic methodology, carrying out research of the legal-comprehensive or legal-interpretative type, to the extent that it verified the aspects in which the legal innovation brought by infra-constitutional legislation violates or does not violate the Constitution. The research analyzed secondary data such as doctrine and specialized articles from the fields of Administrative and Constitutional Law, as well as primary data, such as federal legislation, the 1988 Constitution, and Supreme Court case law precedents. Considering the type of research and the proposed objective, the sources underwent through qualitative analysis. The conclusion obtained indicates, in thesis, conflict with the autonomy and self-government assured to the audit courts, as well as with the principle of separation and independence of powers.