Legal Risks and Potential Violations in International Public Procurement: A Case Study of Electronic Auction No. 90020/2024 – Ministry of Justice (Brazil)

Rogério Santos do Nascimento
Attorney-at-law, former Legal Advisor to the Brazilian Navy, expert in Constitutional and Administrative Law, legal consultant in national and international public procurement

Abstract

This article provides a critical analysis of Public Notice No. 90020/2024, which governs the international electronic auction conducted by the National Secretariat of Public Security for the acquisition of 9x19mm pistols, with an estimated total value exceeding R$ 285 million. Although formally compliant with the new Brazilian Public Procurement Law (Law No. 14.133/2021), the notice contains provisions that may indirectly conflict with legal and constitutional principles. The study highlights issues that could compromise fair competition, including the unjustified exclusion of micro and small enterprises (MSEs) from preferential treatment and the lack of transparency regarding the unit price ceiling for each item.

1. Introduction

The new Brazilian Public Procurement Law (Law No. 14.133/2021) introduced significant reforms, especially regarding transparency, equal treatment, and administrative motivation. These principles are particularly relevant in large-scale and internationally open procurement procedures, such as Electronic Auction No. 90020/2024, conducted by the Federal Government of Brazil through the Ministry of Justice.

2. Methodology

This study adopts a qualitative and documentary approach, based on legal analysis of the public notice in light of the Federal Constitution, Law No. 14.133/2021, Decree No. 11.462/2023, and IN SEGES No. 73/2022. It includes a critical review of the drafting techniques used in the bidding documents, with attention to competitiveness, legality, and procurement integrity.

3. Unjustified Exclusion of Preferential Treatment for MSEs

The notice explicitly states:

“MSE/PREFERENTIAL TREATMENT: NO”

However, there is no administrative justification provided for such exclusion. According to Article 47 of Supplementary Law No. 123/2006 and Article 4 of Decree No. 8.538/2015, preferential treatment for micro and small enterprises is mandatory unless the contracting authority presents a duly substantiated reason for its inapplicability.

Potential harm:

The absence of justification may unlawfully exclude smaller businesses from fair competition, especially in items with reduced complexity or smaller lots.

This omission may violate the principle of legality and duty of motivation (Article 37, Federal Constitution).

4. Omission of Unit Price Ceiling

While the total estimated contract value is disclosed (R$ 285 million), the public notice does not explicitly disclose the maximum unit price per item, or, if disclosed, does not do so in an accessible and transparent manner.

According to the Brazilian Court of Accounts (TCU) and IN SEGES No. 73/2022, although it is admissible to restrict access to estimated prices for strategic reasons, the general rule is transparency and accessibility—particularly in procedures involving international suppliers unfamiliar with national pricing benchmarks.

Potential harm:

The absence of price ceilings in the public documentation may compromise fair bidding and result in unrealistic or distorted proposals, especially from foreign suppliers.

It may also hinder civil society oversight and limit the possibility of identifying overpricing or budget manipulation.

5. Remarks on Participation of Foreign Bidders

The notice appropriately allows the participation of foreign companies without a local office in Brazil, provided they:

Submit freely translated documents at first;

Submit certified translations and apostilled or consularized documents for the contract phase;

Appoint a legal representative in Brazil.

This aspect complies with Articles 63 and 64 of Law No. 14.133/2021 and reflects good legislative alignment with international participation.

6. Final Considerations

The analysis reveals that, although formally well-drafted, the notice includes critical points that may weaken the legal security and fairness of the procurement procedure, such as:

The unjustified exclusion of MSEs from preferential treatment, contradicting the duty of administrative motivation;

The lack of accessible unit price ceilings, impairing price realism and transparency.

Although these issues may not constitute absolute nullities, they are significant and should be addressed by oversight agencies, bidders, and legal professionals in the field of public procurement.

References:

BRAZIL. Law No. 14.133, of April 1, 2021. New Public Procurement Law.

BRAZIL. Supplementary Law No. 123, of December 14, 2006.

BRAZIL. Decree No. 11.462, of March 31, 2023.

BRAZIL. IN SEGES No. 73, of September 30, 2022.

BRAZILIAN COURT OF ACCOUNTS (TCU). Judgments No. 1.214/2021 and 2.209/2020 – Plenary.