In brief
On 31 March 2023, the Brazilian president, Luiz Inácio Lula da Silva, issued Provisional Measure No. 1,167, postponing the definitive replacement of the 1993 Public Procurement Law ("Law No. 8,666/1993") with the New Public Procurement Law ("Law No. 14,133/2021") until 30 December 2023.
Although Law No. 14,133/2021 has been in effect since 1 April 2021, its application would only become mandatory for procedures initiated on 1 April 2023. In the meantime, public entities could initiate hiring procedures based on either Law No. 14,133/2021 or Law No. 8,666/1993.
With the extension, the application of Law No. 14,133/2021 remains optional until the end of the year. Note that when selecting one of the laws, the public entity must apply it both for the hiring procedure and for the contractual terms and conditions.
In more detail
Provisional Measure No. 1,167/2023 amended Article 193, II, of Law No. 14,133/2021 (which originally provided for the repeal of Law No. 8,666/1993 two years after it entered into force), together with Article 191 (which allowed the public administration to apply Law No. 14,133/2021 or Law No. 8,666/1993 while the latter was not repealed).
The extension occurred mainly due to demands by mayors, who requested that the deadline be extended so municipalities could structure themselves and adapt to the new requirements and procedures set forth in Law No. 14,133/2021.
It will then be possible to apply Law No. 8,666/1993 as the governing rule for hiring, provided that the public notice, request for proposal or act authorizing direct hiring is published by 29 December 2023.
This measure also clarifies the original text of the New Public Bid Law, which was unclear in relation to the "cut-off date" to stop applying Law No. 8,666/1993. This date could be interpreted as the beginning of the public contracting procedure (internal phase of the entity) or the date that the public notice, request for proposal or authorizing act is published. This led the federal audit court to issue a recent decision (now overcome) establishing its position on the time frames. The option chosen must be expressly indicated.
The full text of Provisional Measure No. 1,167/2023 can be accessed here (only in Portuguese).
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