Princípio do formalismo moderado em licitações na modalidade pregão: estudo da fase de habilitação

Abstract

The aim of this dissertation is to analyze the principle of moderate formalism in the context of bids promoted by public offices and entities, as well as to verify the possibilities of its application in the course of electronic biddings. Article 5 of the new law on public biddings and administrative contracts - Law 14.133, of 2021 - lists twenty-two principles applicable to public biddings and administrative contracts; however, this list does not include the principle of moderate formalism. Initially, a history of the evolution of public biddings in the world and in Brazil is presented, as well as the concept and the various rules that deal with public tenders. This is followed by an analysis of the constitutional and legal principles that must be observed in public biddings, distinguishing between rules and principles. Next, the phases of public bidding are presented and studied according to the new law on public biddings and administrative contracts, with emphasis on the qualification phase. The characteristics and shortcomings of formalism in Brazilian law are discussed, demonstrating its relevance and purpose. Finally, the concept and characteristics of the principle of moderate formalism are presented, with the selection of a concrete case in which it is used in the context of a bidding procedure. In this work, the deductive method was used; an bibliographic and documentary research was used, as to the means, and the exploratory method, as to the ends. The conclusion of this academic paper is the importance of a correct understanding of this legal principle for its appropriate use in public tenders, which, properly applied, enables the public administration to achieve the ultimate goal of a bidding process. In this sense, the principle of moderate formalism is listed as another instrument available to bidders to help them participate in the administrative tenders and contracting procedures carried out by the Brazilian public administration.