Necessidade de publicação do edital de licitação em jornal diário de grande circulação: debate sobre o efetivo alcance do princípio da publicidade

Abstract

Law 14.133/2021 reproduced, in its article 54, §1, a requirement present in the now-extinct Law 8.666/1993, stipulating the publication of the bidding notice in a daily newspaper of large circulation. Although the publicity of the convocatory instrument is already guaranteed by the necessity of disclosure in other means, such as the National Public Procurement Portal (PNCP) and the official gazette of the bidding entity, the obligation to publish in a newspaper remained. Two questions arise from the mentioned legal provision. The first relates to the concept of "newspaper," especially because the legislator did not define it. Given the current predominance of digital media, the classic concept of a newspaper, which referred to print media for news dissemination, seems outdated. On the other hand, considering the proliferation of portals, websites, and even social media pages that somehow spread news but do not represent what is known as the press or journalistic vehicles, there is significant uncertainty regarding the concrete application of the final part of §1 of article 54 of Law 14.133/2021. The second question concerns the constitutionality of the rule, considering that the two mandatory means of publication already ensure wide dissemination of the notice, and that the law allows for additional publication on the official website of the bidding entity. It is questionable whether this requirement truly serves the principle of publicity and does not violate other principles applicable to Public Administration, such as efficiency, cost-effectiveness, and the supremacy of public interest. The overall objective of this research is to identify the scope of the term "daily newspaper of large circulation" adopted by the legislator and to analyze the constitutionality of the legal provision. To achieve this, the theoretical framework will be on Norberto Bobbio’s thoughts on the principle of publicity. The hypothesis involves a possible unconstitutionality of the rule and, regarding its interpretation, a broad scope of the term "newspaper" that does not limit the publication of the notice to traditional press vehicles. The research will be theoretical, with a legal-dogmatic approach, applying hypothetical-deductive reasoning.