Formalization of Administrative Contracts from the Perspective of Law 14,133/2021

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This article examines the evolution of the formalization of administrative contracts in Brazil, with an emphasis on the innovations introduced by Law No. 14,133/2021. The analysis highlights the advances related to contractual structuring, with emphasis on the requirements for identification, transparency, and management and compliance mechanisms. Based on a comparison with previous legislation, such as Laws No. 8,666/93, No. 10,520/2002, and No. 12,462/2011, the aim is to understand how the new provisions improve legal certainty and efficiency in Public Administration, while meeting the demands of contemporary governance. It is also worth noting that many of the advances enshrined in Law No. 14,133/2021 find precedents in the State-Owned Companies Law (Law No. 13,303/2016), which played a relevant role in the modernization of contracting in Brazil.

1. Introduction

The formalization of administrative contracts is an israel telegram data essential element to ensure the legality, efficiency and clarity of the links established between the Public Administration and contractors. This stage of the contractual process defines the rights and obligations of the parties, in addition to establishing the conditions for the execution, monitoring and eventual review of the contracts.

Historically, Brazilian legislation regulating public procurement has established basic formalization parameters, focusing on legal certainty and control of public resources. However, these rules have demonstrated limitations regarding the detailing of contractual clauses and the adoption of modern governance practices. Law No. 14,133/2021, by repealing Laws No. 8,666/93 and No. 10,520/2002, brought significant changes by integrating new formalization requirements that aim not only to ensure legality, but also to promote transparency, efficiency, and risk management.

This article analyzes the technical aspects of the formalization of administrative contracts, highlighting the advances brought by Law No. 14,133/2021 and its relevance for the modernization of public procurement.

2. Formalization of Administrative Contracts: Initial Parameters

In previous legislation, administrative contracts were regulated by provisions that, although pioneering for the time, presented limitations regarding the detailing of aspects such as compliance and risk management. These rules prioritized standardization and the guarantee of basic legal certainty, but did not incorporate more advanced mechanisms capable of meeting the growing demands for transparency, efficiency and control that contemporary Public Administration requires. This gap reinforced the need for modernization, consolidated with the enactment of Law No. 14,133/2021, which brought more robust and detailed guidelines for contract formalization.

Law No. 8,666/93

Law No. 8,666/93, known as the Bidding and Contracts Law, determined that contracts should be formalized in writing and contain minimum clauses, such as definition of the object, deadlines, payment conditions, sanctions and termination hypotheses (Art. 55). This basic structure sought to standardize contracts and ensure legal certainty. However, the absence of mechanisms such as a risk matrix and contract management left gaps in the prevention and mitigation of conflicts.

Law No. 10,520/2002

The Auction Law (No. 10,520/2002) introduced greater agility to the bidding process for common goods and services, but did not change the parameters for formalizing contracts. Formalization continued to refer to the provisions of Law No. 8,666/93, maintaining the general and less detailed nature.

Law No. 12,462/2011

The Differentiated Public Procurement Regime (RDC), established by Law No. 12,462/2011, brought flexibility for special situations, such as major events and infrastructure works. However, even with the simplification of procedures, contractual formalization remained limited in terms of detail and transparency, not requiring instruments such as a risk matrix or management models.

These laws, despite having established the bases for public contracting in Brazil, highlighted the need for modernization, especially in view of the growing demands for efficiency, control and governance in the public sector.

3. Advances in the Formalization of Contracts with Law No. 14,133/2021

Law No. 14,133/2021 brought a more technical and detailed approach to the formalization of administrative contracts, introducing provisions that reinforce clarity, legal certainty and efficiency in the execution of contracts.

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