Bidding Procedures Under Brazilian Law and How a Company Chooses the Right One

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Choosing the right bidding procedure and reading the solicitation closely largely determine who competes for a public contract and who wins it. Under Law 14.133/2021, a company that understands the criteria for each procedure and anticipates what the solicitation requires lowers its risk of disqualification.

The new regime for public procurement

Law 14.133/2021, known as the New Public Bidding and Administrative Contracts Law, fully replaced the former Law 8.666/1993. It now governs how Brazilian public authorities buy goods, contract for services, and carry out public works. The legislature’s goal was to bring into a single statute rules that were previously scattered across separate laws, giving more predictability to those who take part in bidding processes.

If your company wants to sell to the government, understanding this framework is the first step. Bidding (licitação) is the procedure through which the State selects the most advantageous proposal, observing principles such as equal treatment, legality, publicity, competitiveness, and objective evaluation. Each procedure and each award criterion exists to fit a particular type of contract and a particular logic of competition.

Understanding this structure helps you avoid the most common mistake among newcomers: treating every bidding process as if it were the same. An electronic auction for office supplies is not prepared the same way as a competitive bid for an engineering project. The right procedure shapes deadlines, required documents, and even the pricing strategy of your proposal.

The bidding procedures and what defines each one

The New Law narrowed the list of procedures. There are now five: pregão (a reverse auction for common goods and services), concorrência (competitive bidding), concurso (a contest), leilão (an auction to sell government assets), and competitive dialogue. The former procedures known as tomada de preços and convite were abolished, which calls for care from anyone still working from outdated solicitations and manuals.

The pregão is the procedure used to purchase goods and contract for common services, meaning those whose performance and quality standards can be objectively defined in the solicitation. It is the procedure most often used in the government’s day-to-day purchasing, almost always conducted electronically, with successive bids and an award criterion of lowest price or greatest discount.

The concorrência is reserved for more complex or higher-value contracts, such as public works, special engineering services, and goods and services that do not qualify as common. It allows a wider range of award criteria, which makes it suitable when technical quality carries as much weight as price.

The concurso is used to select a technical, scientific, or artistic work, with a prize or payment for the winner. The leilão is used to sell government assets to the highest bidder. Competitive dialogue, a novelty introduced by Law 14.133/2021, applies to contracts involving technical or technological innovation, when the government needs to talk with interested parties to define the best solution before receiving final proposals.

If your company wants to sell to the government, understanding this framework is the first step.

Award criteria: much more than lowest price

Once the procedure is set, the solicitation states the award criterion, which is the yardstick used to compare proposals. Law 14.133/2021 provides for six criteria: lowest price, greatest discount, best technique or artistic content, technique and price, highest bid in the case of an auction, and greatest economic return.

Lowest price and greatest discount favor the economic factor and are typical of the pregão. The technique-and-price criterion combines the proposal’s technical score with the amount offered, and it is used when the ability to perform directly affects the outcome. Best technique or artistic content, by contrast, prioritizes the quality of the solution and is common in contests and in contracts of an intellectual nature.

Greatest economic return appears in efficiency contracts, where the contractor’s pay is tied to the savings generated for the government. Knowing in advance which criterion governs the process lets you calibrate your proposal: in lowest-price contests, your margin is the sensitive point; in technique-and-price contests, the documents proving your qualifications and methodology can be worth as much as your final price.

It is worth noting that a solicitation may combine technical qualification requirements with the chosen economic criterion, so your company needs to evaluate each bidding process on its own. Reading the award criterion together with the qualification requirements shows right away whether the contest favors the lowest-cost bidder or the one with the strongest technical capacity. This advance analysis guides the decision to participate, adjust your proposal, or focus your efforts on another opportunity that better fits your company’s profile.

How to interpret the solicitation and prepare your proposal

The solicitation (edital) is the internal law of the bidding process. It binds both the government and the bidders, and no requirement can be created or waived outside it. For that reason, you should read it in full and early, without skipping the attachments, the draft contract, or the terms of reference, where the technical specifications that decide qualification are usually found.

The first thing to do is check the qualification requirements. Your company should verify that it has the required legal documentation, tax and labor compliance, technical qualification, and economic and financial standing. Expired certificates, missing proof of technical capacity, or accounting ratios below the minimum are frequent reasons for exclusion before price is even considered.

The second is making sure your proposal matches the subject of the contract. The description of the product or service must correspond exactly to what the solicitation asks for, without omitting mandatory features or offering an item different from the one specified. Discrepancies between your proposal and the terms of reference open the door to disqualification for failing to meet the conditions of the bidding process.

The third involves deadlines and formalities. Document submission dates, the timing for presenting samples, the method of electronic signature, and the rules for appeals must be followed strictly. Missing a deadline, or failing to challenge a clause you consider unlawful within the proper period, undermines your company’s ability to protect its interests.

Frequently Asked Questions

What is the difference between a pregão and a concorrência?

The pregão is for common goods and services with objective performance and quality standards, and it uses a lowest-price or greatest-discount criterion. The concorrência covers more complex contracts, such as public works and special engineering services, and allows a variety of award criteria, including technique and price. The choice depends on the nature of the contract as defined by the government in the solicitation.

Do the convite and tomada de preços procedures still exist?

No. Law 14.133/2021 abolished the convite and the tomada de preços. The procedures currently in force are pregão, concorrência, concurso, leilão, and competitive dialogue. Companies that still rely on old manuals need to update their internal procedures so they do not miss opportunities or make formal mistakes.

What most often causes proposals to be disqualified?

The most common causes are incomplete or expired qualification documents, a proposal that does not exactly match the specifications in the terms of reference, and failure to meet the solicitation’s deadlines and formalities. Reading the entire solicitation and checking your certificates and proof of capacity beforehand significantly reduces this risk.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.