Saneamento de vícios nas fases de julgamento e de habilitação em licitações de estatais federais: limites jurídicos em face do formalismo moderado e da duração razoável do processo

Abstract

The application of the principle of moderate formalism in the bidding process evaluation and qualification phases has the effect of prolonging the bidding process, considering that, as a rule, the contracting agent must provide bidders with opportunities to correct defects in proposals and other documents. On the other hand, the bidding process must be conducted in compliance with the principle of reasonable duration of the process, due to the unavailability of the public interest. In view of this, this paper aims to investigate the legal limits for correcting defects in the evaluation and qualification phases, focusing specifically on the case of federal state-owned companies. To this end, the basic concepts related to the legal regime of state-owned companies, the evaluation and qualification phases, as well as the defects that may occur and their treatment are presented. The methodology adopted is qualitative in nature, through analysis of material collected in bibliographic research, case law and applicable legislation. It was demonstrated that, in specific cases where the extension of the procedural deadline, resulting from the correction of defects in the external phase of the bidding, harms the public interest, the contracting agent may restrict the opportunities for correction. Finally, it is inferred that the attenuation of the principle of moderate formalism in view of the reasonable duration of the process is legally possible, as long as the specific case so recommends and is duly motivated.