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Implementation of the New Bidding and Agreements Law is postponed

Publicado em 04/05/2023 • Notícias • Português

President Lula edited the Provisional Measure 1.167/2023, which extends until December 30th the validity of the old Bidding Law (Law 8.666/93). This measure met a plea from mayors, since 60% of the cities were unable to meet the deadline to adapt to the new law, according to a survey by the National Confederation of Municipalities (CNM). The PM offers an amendment to the Bidding and Administrative Agreements Law(Law 14.133, of 2021), which unifies all legislation on the subject and was scheduled to come into effect as of April 1st. The regulation gave public managers a period of two years to adapt to the new rules.

To its associates, ABIMED has presented a comprehensive study, commissioned to the law firm SPLaw, which focused on the consequences of the change in legislation for the health sector. With the extension, federal, state, and municipal public administration bodies can publish public notices in the old formats until December 29th of this year, as long as the option chosen is expressly stated in the notice.

The new Bidding and Agreements Law limits the use of suppliers that are Micro-enterprises (ME) or Small Businesses (EPP), in order to restrain companies from these segments that are created “specifically” to access preferences in bidding processes. The study highlighted that the new legislation is more precise in the requirement of technical capacity certificates, because before, on the whole, public notices required certificates in a generic way.

The SPLaw document also points out that the NLLC requires impact analysis prior to the determination of suspension or termination by the Public Authority, which represents great progress, as it discards the merely formal analysis. In the firm’s legal understanding, Law 14.133 will allow new models of agreements with the Public Administration: “in the supply and associated service provision, in which the contractor is also responsible for the operation / maintenance of the equipment supplied; in the competitive dialogue, which opens the possibility of partnerships with selected bidders to develop alternatives to meet their needs – which may represent a solution for specific adaptations in the medical equipment sector – and in the efficiency contract, which may include the supply of goods, saving expenses for the contractor and providing earnings for the contractor based on a percentage of the savings generated.”

The appreciation of compliance policies is also foreseen in the new law. Compliance programs are now mandatory requirements for public agreements. Still according to the legal document, there are hypotheses for the exemption of biddings that are important for the healthcare segment, as specified in Art. 75 XII: “for agreements in which there is a transfer of technology of strategic products for the Unified Health System (SUS), as listed in the act of the national management of SUS, including during the acquisition of these products in the technological absorption stages, and in amounts compatible with those defined in the instrument signed for the transfer of technology.”

Another progress included in the NLLC is that it now values good contracting history with the government, which adds the possibility of a negative list for companies that are deemed unsatisfactory. ABIMED continues to be committed to closely following the consequences of the law in the health technology sector and orienting its associates.

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