Sanção de suspensão e de impedimento definitivo e a limitação ao ente federativo aplicador

Abstract

The new Lei de Licitações e Contratos (Bidding and Contracts Law), n°. 14.133/2021, has promoted substantial changes in the administrative procedures submitted to it. Among them, there are some some modifications of the administrative sanctions, especially, the limitation of the suspension and impediment to the applying federative entity. This type of sanction was also provided for by the old Law, nº. 8.666/1993, with a much smaller extension of limitation, according to the Law, since the impediment or suspension occurred only in relation to the Administração (Administration), a concept perpetrated by the 6th, item XII, in other words, to the administrative bodies, entities or units. However, the Superior Tribunal de Justiça (Superior Court of Justice), in repeated decisions, established an interpretation that predicts the irrelevance of the concepts of Administração Pública (Public Administration) and Administração (Administration) provided for in art. 6, items XI and XII, of Law nº. 8.666/1993, deconstructing the entire system of the Law. Thus, the Superior Tribunal de Justiça (Superior Court of Justice) prevailed a greater extent to comply with the sanction. According to the Court's understanding, the sanctions of impediment and suspension implied the impossibility of bidding or contracting all direct and indirect Public Administration and at all federative levels. Therefore, the present research aims to verify the possibility of retroactivity of the sanction of definitive impediment to the applying federative entity, as recommended by the Law 14.133/2021, which the procedures carried out under the aegis of the Law 8.666/1993, which suffered from the strong influence of jurisprudence of the Superior Court of Justice.