Contractual supervision and application of sanctions within the scope of the S System
Posted: Wed Feb 19, 2025 5:33 am
As is known, the entities of the S System, by managing public resources from parafiscal contributions, are accountable to the Federal Court of Auditors, are subject to audits that the body carries out, either ex officio or at the request of third parties, are subject to audits by the Office of the Comptroller General of the Union and, furthermore, their contracts, a topic that interests us for the purposes of this brief article, may be the subject of representations and complaints in general, before the Federal Court of Auditors.
Although they are not bound by the general law that governs public administration tenders and contracts, currently, Law No. 14,133/2021, their regulations must be compatible with art. 37, caput of the Constitution of the Republic and have measures that ensure compliance with the principles enshrined therein. [2] Furthermore, in the execution of public expenditure, compliance with the general principles that guide the execution of public expenditure is required. [3]
In this context, it is worth remembering that the bidding process, or direct contracting, as the case may be, which is usually the focus of all eyes, is just one stage of the contracting kuwait telegram data process, which does not have an end in itself, that is, it exists only as a means to enable the conclusion of the contract. Therefore, a public contract will not be useful to the entity if the contract is not executed, even if the bidding process was perfect.
As a logical consequence, just like the direct and indirect Public Administration itself, the entities of the S System have the duty to monitor their contracts, whether they are signed as a result of public tenders or direct contracts, by waiver or non-requirement of public tender, so that it is possible to guarantee the proper application of the resources spent, through the achievement of the results intended by the entity and the consequent realization of the interest involved.
In this context, the Federal Court of Auditors has already ordered the National Rural Training Service to promote, in view of the principle of efficiency referred to in art. 37 of the Constitution of the Republic, the adaptation of its bidding and contract regulations, to include in them the obligation to formally designate an administration representative to oversee the execution of contracts, along the lines of the then-current art. 67 of Law No. 8,666/1993. [4] As a matter of logic, it can be stated that the recommendation extends to all entities, which must anticipate any possible indication by the Federal Court of Auditors in the same sense and establish, in their regulations, rules on the management and oversight of their contracts.
What does it mean, in practice, to supervise a contract?
Contractual supervision is part of the set of procedures called contractual management. Contractual management, in turn, is the set of formal acts and procedures carried out by designated agents, whose objectives are:
1. ensure delivery of the object in accordance with what was contracted, including deadlines, or its eventual readjustment to, within legal limits and with the least possible extra expenditure, satisfy the interest involved;
2. enable the application of sanctions to the contractor, if applicable, and
3. enable the evaluation of the efficiency and effectiveness of contracting in order to guide management and governance actions for acquisitions.
This concept can be applied regardless of the legal nature of the contracting party – body or entity of the direct or indirect Public Administration or parastatal entity – and its contracts.
However, for contractual management and, consequently, effective monitoring of compliance with contractual obligations to occur, it is essential that the regulations and, where applicable, the contract contain more specific rules, addressing specific issues that allow for the concrete execution of activities related to management and monitoring. Thus, it is necessary, at a minimum, to provide for:
Although they are not bound by the general law that governs public administration tenders and contracts, currently, Law No. 14,133/2021, their regulations must be compatible with art. 37, caput of the Constitution of the Republic and have measures that ensure compliance with the principles enshrined therein. [2] Furthermore, in the execution of public expenditure, compliance with the general principles that guide the execution of public expenditure is required. [3]
In this context, it is worth remembering that the bidding process, or direct contracting, as the case may be, which is usually the focus of all eyes, is just one stage of the contracting kuwait telegram data process, which does not have an end in itself, that is, it exists only as a means to enable the conclusion of the contract. Therefore, a public contract will not be useful to the entity if the contract is not executed, even if the bidding process was perfect.
As a logical consequence, just like the direct and indirect Public Administration itself, the entities of the S System have the duty to monitor their contracts, whether they are signed as a result of public tenders or direct contracts, by waiver or non-requirement of public tender, so that it is possible to guarantee the proper application of the resources spent, through the achievement of the results intended by the entity and the consequent realization of the interest involved.
In this context, the Federal Court of Auditors has already ordered the National Rural Training Service to promote, in view of the principle of efficiency referred to in art. 37 of the Constitution of the Republic, the adaptation of its bidding and contract regulations, to include in them the obligation to formally designate an administration representative to oversee the execution of contracts, along the lines of the then-current art. 67 of Law No. 8,666/1993. [4] As a matter of logic, it can be stated that the recommendation extends to all entities, which must anticipate any possible indication by the Federal Court of Auditors in the same sense and establish, in their regulations, rules on the management and oversight of their contracts.
What does it mean, in practice, to supervise a contract?
Contractual supervision is part of the set of procedures called contractual management. Contractual management, in turn, is the set of formal acts and procedures carried out by designated agents, whose objectives are:
1. ensure delivery of the object in accordance with what was contracted, including deadlines, or its eventual readjustment to, within legal limits and with the least possible extra expenditure, satisfy the interest involved;
2. enable the application of sanctions to the contractor, if applicable, and
3. enable the evaluation of the efficiency and effectiveness of contracting in order to guide management and governance actions for acquisitions.
This concept can be applied regardless of the legal nature of the contracting party – body or entity of the direct or indirect Public Administration or parastatal entity – and its contracts.
However, for contractual management and, consequently, effective monitoring of compliance with contractual obligations to occur, it is essential that the regulations and, where applicable, the contract contain more specific rules, addressing specific issues that allow for the concrete execution of activities related to management and monitoring. Thus, it is necessary, at a minimum, to provide for: