Procurement carried out by Brazilian public offices based abroad: Limitations imposed by the principles that govern the Brazilian public administration to the regulation of the matter

Abstract

Procurement carried out by Brazilian public offices headquartered abroad has its regulation foreseen since the enactment of Law nº 8.666/1993 (art. 123), conditioned to the observation of local peculiarities and the principles that govern the biddings of the Brazilian public administration. Until recently, however, the issue of rules on the subject had been restricted to isolated initiatives. In this context, the Second Chamber of the Federal Court of Accounts determined, in 2017, the fulfillment of the legal mandate, it being timely to investigate the matter and expose the existing limitations for the regulation of these hirings. The analysis is structured around the principles that govern the biddings carried out by the Brazilian Public Administration considered relevant. After a brief contextualization, through a deductive method, supported by bibliographical and documental research, an evaluation is made on how these principles can influence decisions regarding procurements carried out by public offices headquartered abroad. Consultations are made to Law nº 8.666/1993 and Law nº 14.133/2021, giving preference to understandings based on the most recent one, which, in its art. 193, II, determines the simultaneous validity of the regulations until 12/30/2023. It is concluded that such contracting should not be used with the intention of replacing international tenders (principle of legality) nor to waive national jurisdiction in an unjustified way (principle of public interest). They must not harm suppliers headquartered in Brazil (principle of sustainable national development), need to be competitive (principle of competitiveness), in addition to not being able to deviate from Brazilian norms regarding transparency (principle of publicity).