The new Procurement Law (Law No. 14,133/21), enacted on April 1, aims to regulate the procurement processes and contracts of the Public Administration. The law, in force since its signing, repealed some provisions of the current legislation on the subject (Law No. 8,666/93) and will replace it completely in two years.

Among the various changes that the law regulates, some bring about impacts for labor relations. Similar to the prior legislation, the new law establishes that the responsibility for labor charges is exclusively that of the contractor and cannot be transferred directly to the Administration in case of default. However, by filling a gap that existed before, the new law regulates the scenarios in which the Public Administration may be able to respond secondarily for default on labor obligations by the service provider.[1]

Thus, the new legislation expressly establishes the possibility of secondary liability of the Public Administration for labor charges arising from the provision of continuous services with a regime of exclusive dedication of labor, provided that proven failure to monitor the fulfillment of the obligations arising under the contract.

This understanding was already adopted by the Labor Judiciary, as established by subsections IV and V of Precedent 331 and by the Supreme Court (STF) in a theory with recognized general repercussion (Topic 246), but still did not find an express legal provision.

In addition, the legislator added to the normative text some measures that the Administration may take to ensure compliance with labor obligations by service providers and, consequently, avoid possible liability for labor charges arising from the contract.

In this sense, when hiring companies providing for the execution of continuous services, the Administration may require, through a call notice or contract, various preventive measures for the fulfillment of labor obligations, such as:

  • requiring security, bank guarantee, or performance bond, with coverage for defaulted severance payments;
  • conditioning the payment provided for in the contract on proof of discharge of labor payments by the contractor;
  • making deposits of the amounts arising from a contract in an unattachable escrow account;
  • paying severance funds directly to the workers, with subsequent deduction of the amounts related to the contract; and
  • establishing that the amounts intended for vacations, thirteenth salary, legal absences, and severance pay for employees of contractors who participate in the performance of the services contracted, will only be paid by the Administration to the contractor when the triggering event occurs.

The measures implemented by the new legislation indicate that the contracts entered into by the Public Administration for the provision of continuous services will be safer and allow preventive control of procurements, imposing on the private sector stricter conditions for fulfillment of labor burdens.

 

[1] "Article 121. Only the contractor shall be responsible for labor, social security, tax, and commercial charges resulting from the performance of the contract.

  • 1 - Default by the contractor in relation to labor, tax, and commercial charges shall not transfer to the Administration the responsibility for payment thereof and may not burden the object of the contract or restrict the regularization and use of works and buildings, including before the registration of real estate, subject to the scenarios provided for in paragraph 2 of this article.
  • 2 - Exclusively in the hiring of continuous services in an exclusive arrangement of provision of labor, the Administration shall be jointly and severally liable for social security charges and secondarily for labor charges in the event of proven failure to monitor the fulfillment of the obligations of the contractor."