Aula 2.1: Vigência e Aplicabilidade da Nova Lei de Licitações – Profº Valter Farid

Summary

In this video, Professor Walter Faria, a legal advisor to the São Paulo State Penitentiary Administration and a scholar in Civil Law, delves into the critical subject of the new Brazilian bidding and contracting law's enactment and applicability. With a focus on Law 14.133/2021, Faria outlines the law's timeline, its dependence on state regulation for implementation, and the significant changes it brings, including criminal penalties and bidding procedures. Highlighting the urgency due to a recently issued provisional measure that extended the law's grace period, Faria advises on preparation strategies, emphasizing the immediate need for understanding and applying the new law to ensure smooth transition and compliance.

Takeaways

• 📜 The new bidding and contracts law (Lei 14.133/2021) is a significant topic due to its recent implementation and the changes it brings to the legislation and its enforcement.
• 📅 The new law came into effect upon publication, with specific crimes and penalties being enforceable from April 1, 2021.
• 📝 The procedural aspects of bidding, such as the rules governing different types of bidding, were initially set to come into force two years after the law's publication, i.e., April 1, 2023.
• 🤔 There was a lack of preparation and training for public servants on the application of the new law during the two-year grace period.
• 🇧🇷 The Brazilian president issued Provisional Measure 1167/2023 on March 31, 2023, extending the grace period for the old legislation until December 30, 2023.
• 📌 Public officers have the option to use either the old or new legislation for bidding and direct contracting until December 29, 2023, provided certain conditions are met.
• 🚫 Mixing legal regimes is not allowed; one must fully adhere to the chosen legal framework without combining elements from the old and new laws.
• 🔄 The new law simplifies and modifies bidding modalities, maintaining the auction but eliminating the taking of prices and the invitation modality.
• 📈 The new legal framework introduces competitive dialogue as a bidding modality, aiming for more efficient public procurement.
• 📖 It is crucial to start understanding and applying the new law as soon as possible, as the timeframe until its full enforcement is shorter than it may seem.
• 🛠️ Immediate steps should be taken to regulate locally, invest in training and capacity building, and be prepared to adapt to the new legislation.

Q & A

Who is the speaker in the transcript and what is their professional background?

The speaker is Professor Walter Faria de Antônio Júnior, a prosecutor for the State of São Paulo, currently the head of the legal consultancy of the Secretariat of Penitentiary Administration. He holds a Doctorate in Civil Law from the University of São Paulo and a Master's degree in Comparative Civil Law from PUC-SP.

What is the main topic of discussion in the transcript?

The main topic of discussion is the new law of bidding and contracts, specifically its implementation, applicability, and the impact of the provisional measure 1167/2023 that extended the deadline for the new law's effectiveness.

What are the three main objectives of the instruction mentioned in the transcript?

The three main objectives are: to discuss the temporal boundaries of the new bidding law (Law 14.133/2021), to indicate the matters in the new law that require prior regulation for application, and to identify the regulations already issued in the State of São Paulo.

When did the penal crimes outlined in the new bidding law come into effect?

The penal crimes outlined in the new bidding law came into effect on April 1, 2021, which is the date of publication of Law 14.133/2021.

What was the original effective date for the new bidding procedures according to the old law?

According to the old law, specifically Article 193, the new bidding procedures were to come into effect two years after the publication of the new bidding law, which would be April 1, 2023.

What significant change did the provisional measure 1167/2023 bring to the new bidding law?

The provisional measure 1167/2023 extended the period of legal vacuum (vacatio legis) for the new bidding law until December 30, 2023.

Which laws will be revoked when the new bidding and contracts law fully comes into effect?

The laws that will be revoked include Law 8.669/93, Law 10.520/02, and the provisions in Articles 1 to 47a of Law 12.462/11, which deals with the differentiated regime of public contracts.

Can public spenders apply the new bidding law before December 30, 2023?

Yes, public spenders can apply the new bidding law before December 30, 2023, according to Article 191 of the new law, as long as they meet certain conditions such as publishing the bidding notice or direct contracting act until December 29, 2023.

What are the main differences between the old and new bidding modalities?

The old bidding modalities included taking of prices and invitations, which have been extinguished in the new law. The new law maintains the bidding auction and introduces competitive dialogue as a new modality, while also preferring electronic bidding for common goods and services.

What is the recommended approach for entities that have not yet regulated the new bidding law locally?

Entities that have not yet regulated the new bidding law locally can make use of the federal regulation of the new law, which is available on the National Portal of Public Bidding (PNCp) website.

What is the speaker's advice for public servants and others involved in the bidding process in light of the new law?

The speaker advises immediate local regulation, investment in training and capacity building, and a prompt change in mentality to understand, study, and apply the new law as soon as possible.