Law No. 14,133/21, also called the New Public Bids and Administrative Contracts Act (NPBAC), brings several legislative changes to replace the provisions of Law No. 8,666/93. In the criminal sphere, the bidding crimes, previously provided for in Articles 89 to 99 of Law No. 8,666/93, were fully transferred to the Penal Code, through the inclusion of Articles 337-E to 337-O in Chapter II-B: "Crimes against public bids and administrative contracts".

In addition to the relocation of crimes from extravagant legislation to the Penal Code, the description of typical conduct has undergone modifications that can generate significant changes. Some of them directly impact the description of criminal conduct, such as the of the crime of defrauding a public bid or contract, which now includes the following conducts as criminal:

  • the delivery of goods or services with quality or in quantities other than those provided for in the notice or in the contractual instruments
  • the supply of goods unusable for consumption or with expired shelf life; and
  • changing the service provided.

That is, the new law included in the list of criminal conducts some that had long been processed, although they did not expressly appear as bidding crimes.

On the other hand, the crime of disreputable contracting, which provided for equal punishment for the admission, participation and hiring of a disreputable company or supplier through a public bidding process, has now segregated the conducts by injury. Thus, for mere admission or participation in bidding, the penalty will be more lenient than in the case of hiring, which seems more reasonable in the light of the principle of culpability in criminal law. The old wording placed in the same position agents who committed conducts with different harm degrees and who, therefore, deserve a different penalty that is proportional to the impact of their conducts.

Other changes modified solely the penalty imposed and not the description of the criminal conducts, however, these subtle changes can generate important procedural consequences that affect the statute of limitations, the rite in which criminal proceedings will be processed, the possibility of negotiating prosecutorial agreements and replacing the custodial sentence with restrictive rights.

Examples of these procedural impacts are the crimes of sponsoring improper hiring and disturbing of a public bidding process, which had their maximum penalty increased from two to three years. The increase ends up excluding them from the list of misdemeanors, making impossible, consequently, the benefits provided for in Law No. 9,099/95, such as non-prosecution agreements (NPAs) and deferred-prosecution agreements (DPAs).

Another increase in penalty that deserves attention is the crime of frustrating the competitiveness of a public bid, whose sentence became imprisonment from four to eight years – before it was detention of two to four years – which, in addition to raising the statute of limitations from eight to twelve years, also impacts the possibility of conditional suspension of the sentence, the replacement of custodial sentence by restrictive rights and the possibility of an initial open regime for the execution of the sentence.

The new law also provided for a new crime in Article 337-O consistent in a designer omitting relevant data or information, with a corresponding penalty of imprisonment from six months to three years.  This crime is an attempt to also punish those in charge of defining specific conditions for the submission of proposals for public bids and contracts such as surveys, topography, environmental conditions, demand studies, among others. These are issues that, by their nature, directly influence the price and/or conditions of supply of the product or the provision of the services.

Finally, Article 337-P establishes new criteria to calculate the minimum fine in case of crimes against public bidding procedure and contracts. The old maximum of 5% of the value of the contract was waived in the imposition of penalty, provided that it is calculated based on the criteria of the Penal Code.

Law No. 8,666/93 provided that the amount raised by the criminal fine should be allocated to the public agency harmed by criminal conduct. The new law withdrew this provision, probably in an attempt to fix the punitive nature of the fine opposed to the indemnification aspect, which should be discussed in civil action.

The criminal amendments came into force on the date of publication of the law, while the provisions relating to the bidding process and the conclusion of administrative contracts will enter into force only in April 2023.

The effective implementation of criminal changes should still be the subject of deep jurisprudential discussions. The courts will face the difficult task of reconciling the criteria of criminal law enforcement in time with the dates of conclusion and expiration of public contracts in progress, in addition to establishing the parameters of compatibilization of the old public procurement guidelines with the new criminal provisions for the next two years.

Below is a comparative table of the criminal provisions.

 

Law No. 8,666/93 Law No. 14,133/21
Art. 89. To waive or to not require bidding outside the circumstances provided for by law, or to fail to observe the formalities pertaining to the dispensation or non-enforceability:
 

Penalty – detention of 3 (three) to 5 (five) years, and fine.

Single paragraph. In the same penalty incurs the one who, having proven to have run for the consummation of illegality, benefited from the exemption or illegal unenforceability, to enter into a contract with the Public Power.

Illegal direct contracting

Art. 337-E. To admit, enable or cause direct contracting outside the circumstances provided for by law:

Penalty - imprisonment, from 4 (four) to 8 (eight) years, and fine.

Art. 90. To frustrate or defraud, by adjustment, combination or any other expedient, the competitive nature of the bidding procedure, with the aim of obtaining, for themselves or for others, an advantage arising from the award of the object of the tender:
 

Penalty – detention, from 2 (two) to 4 (four) years, and fine.  

Frustration of the competitive bidding character

Art. 337-F. To frustrate or defraud, in order to obtain for oneself or for others the advantage arising from the award of the object of the tender, the competitive nature of the bidding process:

Penalty - imprisonment, from 4 (four) years to eight (eight) years, and fine.  

Art. 91. To sponsor, directly or indirectly, private interest before the Administration, causing the establishment of bidding or the conclusion of a contract, the invalidation of which may be decreed by the Judiciary:
 

Penalty – detention, from 6 (six) months to 2 (two) years, and fine.

Improper hiring sponsorship

Art. 337-G. To sponsor, directly or indirectly, private interest before the Public Administration, giving cause to the establishment of bidding or the conclusion of a contract whose invalidation may be decreed by the Judiciary:

Penalty - imprisonment, from 6 (six) months to 3 (three) years, and fine.

Art. 92. Admit, enable or give cause to any modification or advantage, including contractual extension, in favor of the adjudicatory, during the execution of contracts concluded with the Public Power, without authorization in law, at the convening act of the tender or in the respective contractual instruments, or, furthermore, pay invoice with deprecation of the chronological order of its presentation:
 

Penalty – detention, from 2 (two) to 4 (four) years, and fine.

Sole paragraph. The contractor who, having been proven to have committed the consummation of illegality, obtains undue advantage or unfairly benefits from contractual modifications or extensions is the same penalty.

Irregular modification or payment in administrative contract

Art. 337-H. Admit, enable or give cause to any modification or advantage, including contractual extension, in favor of the contractor, during the execution of contracts concluded with the Public Administration, without authorization in law, tender notice or in the respective contractual instruments, or even pay invoice with deprecation of the chronological order of your enforceability:

Penalty - imprisonment, from 4 (four) years to eight (eight) years, and fine.
Art. 93.  To prevent, disturb or defraud the performance of any act of bidding procedure:
 

Penalty – detention, from 6 (six) months to 2 (two) years, and fine.

Disturbance of bidding process

Art. 337-I. To prevent, disturb or defraud the performance of any act of bidding process:

Penalty - detention, from 6 (six) months to 3 (three) years, and fine.
Art. 94.  To breach the secrecy of a proposal presented in a public bidding process, or to provide the third party with the opportunity to breach it:
 

Penalty – detention, from 2 (two) to 3 (three) years, and fine.

Violation of confidentiality in bidding

Art. 337-J. To breach the secrecy of a proposal presented in process tender or provide the third party with the opportunity to breach it:

Penalty – detention, from 2 (two) years to 3 (three) years, and fine.

Art. 95.  To remove or seek to fend off bidders, through violence, serious threat, fraud or offering the advantage of any kind:
 

Penalty – detention, from 2 (two) to 4 (four) years, and fine, in addition to the penalty corresponding to violence.

Single paragraph. Incurs the same penalty who abstains or gives up bidding, due to the advantage offered.

Withdrawal of bidder

Art. 337-K. To remove or seek to to fend off bidders through violence, serious threat, fraud or advantage of any kind:

Penalty- imprisonment, from 3 (three) years to 5 (five) years, and fine, in addition to the penalty corresponding to violence.

Single paragraph. Incurs the same penalty who abstains or gives up bidding due to advantage offered.

Art. 96. Fraud, to the detriment of the Public Treasury, bidding established for the acquisition or sale of goods or goods, or contract arising from it:
 

I – arbitrarily raising prices;
II – selling, as true or perfect, counterfeit or deteriorated merchandise;
III – delivering one goods to another;
IV – changing substance, quality or quantity of the goods supplied;
V – in any case unfairly rendering the tender or performance of the contract more costly:

Penalty – detention, from 3 (three) to 6 (six) years, and fine.

Fraud in bid or contract

Art. 337-L. Fraud, to the detriment of the public administration, bid or contract arising therefrom, by:

I – delivery of goods or provision of services with quality or in quantity different from those provided for in the notice or in the contractual instruments;
II – supply, as true or perfect, of counterfeit, deteriorated, unusable for consumption or with shelf life overdue;
III – delivery of one goods by another;
IV – change in the substance, quality or quantity of the goods or the service provided;
V – any fraudulent means which makes the tender or the performance of the contract unfairly more costly for the Public Administration:

Penalty - imprisonment, from 4 (four) years to eight (eight) years, and fine.
Art. 97.  To admit to bidding or enter into a contract with a company or professional declared disreputable:
 

Penalty – detention, from 6 (six) months to 2 (two) years, and fine.

Sole paragraph. It is the same penalty that, declared disreputable, will bid or contract with the Administration.

Disreputable contracting

Art. 337-M. To addmit to the bidding company or professional declared disreputable:

Penalty – imprisonment, from one (1) year to 3 (three) years, and fine.

§ 1º To enter into a contract with a company or professional declared disreputable:

Penalty – imprisonment, from 3 (three) years to 6 (six) years, and fine.

§ 2º It is the same penalty of the caput of this article that, declared disreputable, will participate in bidding and, in the same penalty of § 1 of this article, the one who, declared disreputable, will contract with the Public Administration.
Art. 98. To prevent, avoid or unjustly hinder the registration of any interested party in the registration records or to improperly promote the alteration, suspension or cancellation of registration of the registrant:
 

Penalty – detention, from 6 (six) months to 2 (two) years, and fine.

Undue impediment

Art. 337-N. To prevent, avoid or unjustly hinder the registration of any interested in the registration records or improperly promote the alteration, suspension or cancellation of registration of the registrant:

Penalty - imprisonment from 6 (six) months to 2 (two) years, and fine.

Serious omission of data or information by designer

Art. 337-O. To omit, modify or deliver to the Public Administration a cadastral survey or boundary condition in relevant dissonance with reality, in frustration with the competitive nature of the bid or to the detriment of the selection of the most advantageous proposal for the Public Administration, in contracting for the preparation of basic project, executive project or preliminary project, in competitive dialogue or in a procedure of expression of interest:

Penalty – imprisonment, from 6 (six) months to 3 (three) years, and fine.

§ 1º It is considered a condition of contouring the information and surveys sufficient and necessary for the definition of the project solution and the respective prices by the bidder, including surveys, topography, demand studies, environmental conditions and other environmental elements impacting, considered minimum or mandatory requirements in technical standards that guide the elaboration of projects.

§ 2º If the crime is committed in order to obtain benefit, direct or indirect, own or other, applies twice the penalty provided for in the caput of this article.

Art. 99. The penalty provided for in  arts. 89 to 98 of this Law consists of the payment of an amount fixed in the judgment and calculated in percentage indices, the basis of which shall correspond to the value of the advantage actually obtained or potentially obtainable by the.

§ 1° The indexes referred to in this article may not be less than 2% (two percent), not more than 5% (five percent) the value of the contract tendered or concluded with exemption or non-enforceability of bidding.

§ 2° The proceeds of the collection of the fine will revert, as the case may be, to the Federal, District, State or Municipal Treasury.   

 

Art. 337-P. The penalty of a fine imposed on the crimes provided for in this Chapter shall follow the calculation methodology provided for in this Code and may not be less than 2% (two percent) of the value of the contract tendered or concluded with direct contracting.