Bids CSA – 01
Is it licit to impose previous registration as a condition to access auction notice? No.
It is not possible to establish this requirement. Even in case of Price Submission, where bidders take their documentation any moment before the auction session, the access to auction notice cannot be restrained nor limited to registered bidders. Citizens that will take part of the bid also have the right to access auction notice once they the right to appeal. It refers to a right not only for the bidder, but also for the citizen in general that has the prerogative to appeal the call notice.
The impossibility of access restriction to the auction notice was confirmed by the Federal Court reflecting what is in Article 22, paragraph 2 from Law 8.666/93, at Lower Court Decision TC-004.950/2010-0: “Auction Notice Acquisition conditioned to registration of Bidder.” The Plenary supported precautionary measure deferred by the rapporteur that determined that the City Hall of Chã Preta/Alagoas State suspends Price Submissions 1/2010, 2/2010, and 3/2010 due to possible irregularities:
Acquisition of auction notice conditioned to bidder registration at the city;
Registration fee of R$150.00 and another reproduction costs fee of R$150.00;
Non-receival of documents from the Representative due to registration, with documents with electronic notarization and not in a notary office.
In judicial cognizance, the rapporteur considered illegal to condition the auction notice acquisition to a previous registration, once according to Article 22, paragraph 2 from Law 8.666/93, “it is applicable only to the participation in the bidding. In addition, there was no legal support to the non-acceptance of documents from the Representative with digital notarization. There is legal provision for the referred procedure according to Article 52 from Federal Law 8.935/94 and Article 6 from State Law 8.721/2008 from Paraiba State. It also lacks legitimation the charge of registration fee as well as the charge fee for auction notice reproduction costs.” Lower Court Decision TC-004.950/2010-0, rapporteur: Minister Aroldo Cedraz, March 17th, 2010.