Introduction

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A  Law nº 14.133/2021, innovates in several aspects, and brought the sustainability theme in its environmental bias, however the assimilation of the theme and its internalization in the environment of the contracting processes will be a new challenge. The former Law nº  8666/93  provides in article three as the purpose of the bidding, the promotion of sustainable national development which _cc781905-5cde-3194-bb3b-136bad_5 secf58d_ also In this respect, it inserts compliance  with environmental sustainability criteria in procurement and public contracting processes.

The concept of human development is related to the environment in which man is inserted. In this aspect, there are several guidelines to be observed, and these involve the whole society, including the Public Administration. It is clear that since the public administration is one of the main areas responsible for promoting large-scale purchases, it brings with it the responsibility of at least fomentar  the productive system to increase the market in a sustainable way.  However, the prism to be observed is much larger than it appears to be, this is because, the sustainability invoked in society crosses several areas of knowledge, so everyone is responsible for human development inserted in the sustainable environment, whatever for. In this regard, experts in the field of Sustainability, professors and authors, Mr. Cader,  Renato and Villac, Teresa and claim that this transversality achieves sustainability[1], as you can read below:

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 “ the notion of transversality stems from the field of philosophy of science, which points to the need to reconcile different fields of knowledge to obtain a better understanding of social and environmental phenomena. This perspective can already be applied, in the foreground, to the concept of sustainability.

Encouraging the production system to offer sustainable products is also combined with the promotion of services, carrying out public works respecting the guidelines already established in the current legislation.  Thus, considering the pillars of this sustainability, necessary for human development, which are formed by social, economic and environmental aspects, as already defined, it remains for the public power, dressed in its armor of _cc781905-5cde- 3194-bb3b-136bad5cf58d_sovereignty institute mechanisms that make it possible, in a concrete way, to care for the sustainability necessary for society.

The panorama  of Sustainability in its environmental dimension affects other aspects of law, thus, it moves away from the  theoretical character and becomes civil liability in the Brazilian legal system.  It is observed that in relation to the topic  “civil liability” it is important to ensure some elements for its observance, so there must be conduct and a causal link , and this between the conduct and the result. Thus, we have  two aspects: an objective liability and a subjective one, when arising from guilt.

For Meirelles, Hely Lopes  “civil liability is the one that translates into the obligation to repair property damage and is exhausted in the indemnification”. (…) “The civil liability of the Administration is, therefore, that which imposes on the Public Treasury the obligation to compensate for the damage caused to third parties by public agents, in the performance of their attributions or under the pretext of exercising them”.

The Brazilian judiciary in considering these issues,  so that the Superior Court of Justice holds several theses   consolidated in the court on environmental damage. recently in process[two], a logging company was held responsible and sentenced  to pay BRL 420,000.00 (four hundred and twenty thousand reais) in a fine and interdicted, due to selling the  “equivalent to 18 trucks (or an Eiffel Tower) of illegal wood, sold or on site (840 m³). All production verified on site was illicit.” In addition to these penalties, it was “obliged to create a 105-hectare Private Natural Heritage Reserve and prevented from contracting financing and receiving tax incentives until the repair is completed, in solidarity with third parties in this deed”.

On the subject, the STJ  manifested itself on the subject at various times, we bring up some understandings, such as: Precedent n. 613/STJ, in which (…)  “The application of the fait accompli theory in Environmental Law is not allowed. (Precedent No. 613/STJ), therefore, “There is no acquired right to maintain a situation that causes damage to the environment”.

Precedent 652/STJ also stands out, in which   the STJ consolidated the understanding that "The civil liability of the Public Administration for damage to the environment, resulting from its failure to inspect, is solidary character, but of subsidiary execution. The two precedents cited are examples of situations in which the responsibility of the person causing the damage to the environment was identified.

The EU-European Union published in 2004, a Directive 2004/35/EC of the European Parliament and of the Council , based on the polluter pays principle, the regime on environmental liability applicable to the prevention and repair of environmental damage, in the following years  others _cc781905-5cde- 3194-bb3b-136bad5cf58d_changes were introduced by other  Directives. These  directives within the EU, as well as the Brazilian Constitution  and the  infraconstitutional legislation on the Brazilian environment da  Lei  nº 6.938/81 also bring some principles and concepts, such as: the polluter-pays principle; subsidiarity; da  prevention and precaution. All these rules indicate that prevention on the grounds of certain risk and  the precautionary principle when there is serious risk.

Therefore, in the reasoning of the principles that underpin human development, actions aimed at sustainability must be carried out under the three-dimensional prism, that is,  in its three  dimensions, which environmental, social and economic, and not necessarily in that order, thus shaping the concept of sustainable development, the result of several discussions at the United Nations – UN and other international organizations.

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The  Federal Constitution of 1988 and the legislation

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The Brazilian Federal Constitution in its article 37 "caput" provides for the principles that govern thePublic Administration, and no  article 170, item VI[3]  brings the constitutional principle of SUSTAINABILITY.   Then in article 225[4] da CF/88, the right to environmental sustainability is once again observed, with the Public Power responsible for various actions, which involve, for example,  a _cc781905-5cde- 3194-bb3b-136bad5cf58d_preservation and restoration of ecological processes, including  all the necessary apparatus.

As is well known, the concept of sustainable development available in the Brundtland Report (called Our Common Future) defines in a simple sentence that this development:   is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.

So for this premise to adapt to reality, there are several and varied laws that are present in the Brazilian legal system, however, being Brazil of continental dimensions, the effectiveness of the legislation becomes difficult to implement.

In this context, many laws were published in order to establish an environment conducive to the achievement of constitutional guidelines.   The following can be highlighted: Law nº 9.605/1998 – Environmental Crimes Law;  Law No. 12,305/2010 – Establishes the National Solid Waste Policy (PNRS) and amends Law No. 9,605/1998;  Law nº 14.026/2020 – updates the National Sanitation Policy framework,  among others.

No âmbito das contratações públicas,  a Lei  nº 8.666/93  foi alterada pela Lei  nº 12,349 in 2012, which inserted a third purpose of the bidding: the promotion of sustainable national development, according to article 3:

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Art. 3o  The bidding is intended to ensure compliance with the constitutional principle of equality, the selection of the most advantageous proposal for the administration and promotion of sustainable national development and will be processed and judged in strict accordance with the basic principles of legality, impersonality, morality, equality, publicity, administrative probity, binding to the summons, objective judgment and those related to them. (Wording provided by Law No. 12,349 of 2010)

In addition to this premise, the Federal Government instituted a Decree regulating sustainable contracting, Decree No. 7,746/2012, and thus, together with Law  12.305/2010 (PNRS - National Solid Waste Plan ), which introduced the concept of reverse logistics and the product life cycle,   thus, green purchases or sustainable purchases now have a reinforced guideline, also including the performance of works and services .

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The Innovative Lei  nº 14.133/2021 and Sustainability

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Initially, Law nº 14.133 brings in the fifth article, several principles, among them, the principle of promoting sustainable national development, and, later, in article 11, it establishes that the bidding process  brings as one of the objectives, the compliance with the principle of selection of the proposal that presents the most advantageous result in its contracting. It is observed, however, that this advantage will take into account the life cycle of the object, but not only that, observing the reflection of this cycle so that the cost-benefit relationship is actually demonstrated in that choice.

But. what is the life cycle of the object?  The life cycle of the object or product is considered, in accordance with the provisions of Law No. 12.305, as follows: “IV – product life cycle: series of steps that involve product development, obtaining raw materials and inputs, the production process, consumption and final disposal. That is, there will be a need for a more accurate assessment of the costs involved in choosing the solution, taking into account the dictates of environmental sustainability.

The  Law also makes it possible  in the criterion of  “judgment by_cc781905-53-debbd-31” take into account the "lesser expenditure for the Administration", which means, in practice, considering: "Indirect costs, related to maintenance, use, replacement, depreciation and environmental impact of the bid object, among other related factors to its life cycle”, in this way,  clearly solves the possibility of inserting solutions that at first may seem more expensive, but  that in the end, will be less expensive.

Invoking again, Professors Cader, Renato and Villac, Teresa,  there are several obstacles for the Administration to acquire solutions in a sustainable way, the main factor being the organizational culture[5], inserted in this context, it appears that four situations make up this obstacle:

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• The high cost of sustainable hiring

• The budget limitations

• Absence of reliable information

• Lack of training and qualification of those involved

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Other obstacles are mentioned by the authors, such as: absence of policies and norms; lack of support from senior management and absence of assessments from the control bodies, in addition to deficiencies in the market itself.  The Law  nº 14.133/2021 has a greater challenge to insert item IV in article 11, (…) “encouraging innovation and sustainable national development”,   just as Law  nº 8666/93 did, however, now also invoking innovation. At the same time, one cannot forget that the incentive to innovation is not restricted to technological issues, as is usually associated, but sustainability itself, being transversal as it is, suggests innovation in other aspects of the bidding process, such as the public notice requirement. of segmented percentages, such as the equality “between men and women in the workplace,” in companies  and requirement of percentage minimum  in companies of “women victims of domestic violence; and  from or from the prison system”, all this is sustainability, still pending regulation.

Considering the economic issues related to the values of contracts, in items II and III of article 11 of the Law  nº 14.133/2021 cited,  with regard to "treatment equality between bidders” the “fair competition” and measures to prevent overpricing and overpricing, as well as care with clearly unfeasible prices, it is seen that these are issues that are related to sustainability in the economic bias.

Finally, Law No. 14,133/2021 also brought sustainability in the environmental aspect   in relation to works, supply and services, including engineering, in this way, criteria should be established from the preliminary technical studies, in order to provide the most appropriate solution, see article 144:

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Art. 144. In the contracting of works, supplies and services, including engineering, variable remuneration may be established linked to the performance of the contractor, based on goals, quality standards, environmental sustainability criteria and delivery deadlines defined in the bidding notice and in the contract.

What could actually be increased, what are the viable possibilities in the NLLC that accelerate the process of sustainable contracting?  There are countless possibilities, there is a lack of political will, a lack of mass awareness. We can highlight  a  possibility of proof of product quality, as the first point to be studied. As defined in article 42 and subsections, it is possible to demand  that the product complies with Brazilian technical quality standards, in accordance with official bodies or by another entity accredited by Inmetro; it is possible to require, for this purpose,  certification, certificate, laboratory report or similar document, among others, that prove the quality or even requirements of environmental sustainability.

As a rule, the great difficulty alleged   in hiring in relation to the requirements for proof of quality in the Law  nº 8.666/93_cc781905-5cde-3194-bad_bb5cf-58d6 was verified possibility of substantiating technical qualification requirements, through reports and certifications as qualification criteria, a point outdated in the New Law.

All existing doctrine and jurisprudence is based on the possibility of requiring evidence of a qualitative nature only as a specification of the object and not on the presentation of qualifying documentation. This prerogative was then modified, see:  art.42 (…) “§ 1 The public notice may require, as a condition of acceptance of the proposal, product quality certification by an institution accredited by the National Metrology Council , Standardization and Industrial Quality (Conmetro)”.

Then read:

Article 17

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§ 6 The Administration may require certification by an independent organization accredited by the National Institute of Metrology, Quality and Technology (Inmetro) as a condition for acceptance of:

I – studies, preliminary projects, basic projects and executive projects;

II – completion of contract phases or objects;

III – material and technical staff presented by the company for qualification purposes. (emphasis ours).

Upon reading the aforementioned paragraphs, the public notice may require certification as a condition of acceptability of the proposal  and for the acceptance of  material and technical staff presented by the company for qualification purposes.

What we can conclude is that quality certifications, in addition to being possible to be required, can also be required to accept the proposed material as well as technical staff (people)  presented by the company for qualification purposes.

If this prerogative is properly  required and complied with, there can be no future difficulties in contracting goods, services  and works with an improved level of qualification and still sustainably.

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conclusions

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The overwhelming innovation of Law nº 14.133/2021 can be noticed in  several aspects related to the sustainability theme in its environmental bias, through several sparse provisions. The concern comes from a concept or, in other words, a principle of human development, because the theme is TRANSVERSAL.

With regard to responsibilities, the  ordinamento Brasileiro has already regulated through the Constitution  and the numerous legislations  on the environment in Brazil With regard especially to the innovations of 14.133/2021. It is noteworthy that the theme was inserted in two aspects, as a principle and   as an objective of the bidding process.

In this aspect, the observance of the principle of selection of the proposal that presents a result in its most advantageous contract, considering the life cycle of the object, was significant. In addition to what can already be done in current legislation,  the “judgment by  technique and price” considering the “lower expenditure for the Administration”, _cc781905-5cde -3194-bb3b-136bad5cf58d_foi  a great advance, because   are several obstacles for the Administration to acquire solutions (acquisition of goods, services and works in a sustainable way).

Innovation is the word of the moment, innovation in the text of the Law and in the actions resulting from the Law itself. Sustainability in its three pillars forms a legal triangle that urgently needs to be implemented in bidding processes, as  a fundamental element of GOVERNANCE, as it depends on understanding and intertwining with sustainability.  

Other issues are seen in the Law that are as important as sustainability in terms of the environment, such as the economic apparatus, which is so complex in terms of feasibility and balance in the economic-financial equation.  The Matrix of Risks inserted in and allied to contractual sustainability, originating  from the pre-contractual moment, is a reflection of Sustainability, in its economic dimension. Thus, o  “isonomic treatment among bidders” the “fair competition” mentioned, as well as all related issues, are based on this very distant and distant SUSTAINABILITY.

Finally, Law nº 14133/2021, also brought sustainability in the environmental aspect  in relation to works, supply and services, including engineering, even knowing that Law nº 8.666/93 and the legislation related companies already have such a prediction. What can be highlighted in this aspect is the possibility of “variable remuneration linked to the performance of the contractor”, which is also based on environmental sustainability criteria.

Therefore, from the questions presented, it is pointed out that the  great alleged difficulty  in the contracting of Law No. through certifications, which was resolved in the New Law. Thus, despite the pending regulations and the practical implementation of these rules, it is possible to create a positive expectation  for the implementation of SUSTAINABILITY  in its various multidimensional aspects, as an element of Governance.

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[1] Cader, Renato and Villac, Teresa . Governance e  Sustainability. A necessary link in Brazil. Belo Horizonte: Forum, p.140,2022.

[two] STJ. Supreme Court of Justice. REsp 1835508/MT. SPECIAL RESOURCE. 2019/0043194-9.  1835508/MT. SPECIAL RESOURCE. 2019/0043194-9. Available at: https://stj.jusbrasil.com.br/jurisprudencia/1562271828/recurso-especial-resp-1835508-mt-2019-0043194-9/inteiro-teor-1562271846

[3] Constitution of the Federative Republic of Brazil of 1988. (…) “Art. 170. The economic order, founded on the valorization of human work and free initiative, aims to ensure a dignified existence for all, according to the dictates of social justice, observing the following principles:”. (…) “VI – defense of the environment, including through differentiated treatment according to the environmental impact of products and services and their preparation and delivery processes; (Wording given by Constitutional Amendment No. 42, of 12.19.2003)”.Available at: http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm

[4] Idem. (...) " Art. 225. Everyone has the right to an ecologically balanced environment, a good for common use by the people and essential to a healthy quality of life, imposing on the Public Power and the community the duty to defend and preserve it for present and future generations ”.

[5] Cader, Renato and Villac, Teresa . Governance e  Sustainability. A necessary link in Brazil. Belo Horizonte: Forum, p.107-109, 2022.

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Text by Madeline Rocha Furtado