The Procurement Law (Law no. 8.666/93) provides in its art. 24, where the cases where it is possible to direct contracting, ie, without the necessity of bidding.
Among the possibilities imposed by law, we highlight the waiver bidding in emergencies, under item IV of article above.
Thus, the bid is dispensable in cases of emergency or calamity, when characterized urgent care situation that may cause injury or endanger the safety of persons, works, services, equipment and other property, public or private, and only for assets necessary to meet emergency or dire situation and works for plots and services that may be completed within 180 (one hundred and eighty) days consecutive, uninterrupted, from the occurrence of an emergency or calamity, forbidden to extend their contracts .
And, to be characterized by urgency and therefore possible without bidding, you need the following assumptions:
a) that the adverse situation, given as emergency has not originated, wholly or partly, the lack of planning, administrative sloth or mismanagement of available resources;
b) that there is urgency concrete and effective service to the emergency situation created by the state or calamitous, aiming risk of damage to property or to the health or life of the people;
c) the risk that, in addition to concrete and effectively probable, imminent, and will prove especially burdensome;
d) that the immediate realization, through contracting with third party of certain works, services or purchases, as specified quantitative and technically refined, is the appropriate way, effective and efficient way to avert the imminent risk detected.
Some examples of the characterization of the emergency situation, taken from decisions of the Court of Audit:
- Lack of essential drugs in the state health posed an imminent risk to public health. This situation required the public administrator a duty to act quickly. It is noteworthy that the newly inaugurated government had the foresight to purchase medicines in sufficient quantity to fifteen days, demonstrating that suit sought only a momentary situation and the drugs were purchased for prices in line with those prevailing in the market;
- There must be urgency concrete effective, that is, the state must pass state or dire emergency, aiming away risk of injury to health or life of the people.
(Source: Decisions ns. 1.728/2002, published in the Gazette of 07.01.2003 and published in the Gazette of Menu 13/09/97 at TC-012561/026/95).
And what about the qualification of the contractor? In our view, the waiver bidding in urgent cases, there is no legal support for requiring a detailed assessment of the requirements associated with the economic and technical qualification of the contractor.
Therefore, we conclude that the direct hiring, mainly for reasons of urgency, waive preliminary stage of qualification and should only contemplate the presentation of certificates to Social Security and with the legal requirements of the sole paragraph of art. 26 of Law 8.666/93 (as TC process 013.387/97-9 conclusion, the Court of Audit - DOU of 12/03/1999).
Once characterized the waiver bidding, it imposes the need for its justification, communication with higher authority, under penalty of ineffectiveness of the act.
But there are legal precautions required by the public administrator when performing direct hiring. They are: characterization of an emergency situation, due to the choice of the supplier, the price justification and approval documents for research projects to which the assets are allocated (sole paragraph of art. 26).
And there may be an extension of the contract for Emergency? The item IV of article. 24 provides direct hiring in cases of emergency or calamity, for the portions of works and services that may be completed within 180 (one hundred and eighty) days consecutive, uninterrupted, from the occurrence of an emergency or calamity, forbidden extension of their contracts. "
However, according Marcal Justen Filho ("in" Comments to the Procurement Law and Administrative Contracts, Publisher Renew, 4th edition, 1996), "the extension is undesirable, but can not be prohibited. The extension may occur, depending on the change in circumstances. "
Already in understanding Rigolin Ivan Barbosa and Marco Tulio Bottino ("in" Practical Handbook of Procurement, Mumbai, Editora Saraiva, 1995), we see that "if another state or dire emergency occurs within one hundred and eighty days of the first, another acquisition properly substantiated through other direct hiring, can always be done and it is still with the same person or entity, what is veda is an extension of the same contract beyond one hundred and eighty days, it seems more reasonable than understand have the Law prohibited any extension within that period. "