(English) The Federal Accounting Court decides it is illegal fixing of ‘minimum quantitative’ in order to measure the Bidders technical and professional qualification

[:en]The Brazilian Federal Accounting Court (TCU) rendered two decisions in the sense that it is possible to require evidence of professional and technical capacity of bidders, in order to prevent the assignment of services to professionals that do not have the required technical abilities to execute of such size.

Article 30 of the Bidding Law (Law 8.666/93) stipulates the necessary documents that can be required by the administration to demonstrate the technical qualification of bidders. These include certificates of technical and operational capability as well as professional expertise.

The technical and operational capability, whichrefers to the business experience of a company,is composed of a set of certificates issued by the customer on behalf of the company, after the execution of each contract. On the other hand, the professional expertise is related to the experienceof the professionals that belong to the companies, demonstrating that they have already executed services that are similar to the matter of the bid,which is proven by certificates of technical responsibility or similar documents.

Regarding the professional expertise, article 30, §1°, item I of the Bidding Law expressly prohibits the imposition of minimum quantitative criteria or deadlines to prove the technical and professional capacity of bidders. Notwithstanding this interdiction, the Federal Accounting Court (TCU) of Brazil rendered two unprecedented decisions at the end of 2013, in order to allow the inclusion of these requirements in the bid invitation, when such proof are paramount to the execution of the bidding services.

In Court Ruling No. 1.214/2013, the Brazilian Federal Accounting Court (TCU) pronounced that “it is necessary to analyze the final part of article 30, §1°, item I of the Bidding Law with reasonability, because when the prime factor of the bidding is the existence of experience on certain minimum qualitative criteria or certain deadlines, it would be a contradiction to literally obey this rule, prevailing the interpretation that one cannot demand such requirements, the bidding would be made impossible and the rule would be ineffective”.

Also in Court Ruling No. 3.070/2013, the rapporteur concluded that “the presentation of a certificate of technical and professional capacity that prove the existence of minimum quantitative criteria is vitally important, otherwise the Administration could assign the responsibility for the provision of services to professionals that do not have their technical abilities demonstrated for the execution of services correspondent to those which will effectively be contracted”.

It is important to clarify that even though the Brazilian Federal Accounting Court (TCU) has rendered these recent decisions, in the sense that it is possible to require the demonstration of the technical and professional abilities to participate in a bidding process, this position has not yet been consolidated by the Court, although it indicates a new tendency for decisions on the subject.

Therefore, the companies that wish to participate of the bidding process must carefully observe the requirements of the publicbidding notice regarding the demand of technical and professional abilities certifications. The companies should also be keen to contest the bidding notice as well, when they understand that the decisions pronounced by the TCU are being distorted to demand qualification criteria in order to direct or decrease the competitive edge of the dispute, or even to impose a disproportional security on the set of professional experiences of the future contracted party.

Questions in bidding and public contracting? Please contact us, our team is available to help you.

Carolina Chagas– Lawyer of the Public Law Team

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