What are the TCU guidelines, issued in Ruling 4370/2023, regarding the auctioneer's performance in electronic competitio
Posted: Wed Feb 19, 2025 5:38 am
The TCU Ruling that we will explore in this text arises from a Representation made by one of the bidders who felt harmed due to the irregular actions of the agent responsible for conducting an electronic auction, the purpose of which was to contract for ongoing property surveillance services. According to the company, the auctioneer disqualified some bidders on the grounds that there were inconsistencies in their cost spreadsheets, without, however, identifying them, thus making it difficult to correct and use the proposals. In short, the allegations contained in the Representation are as follows:
“a) there are suspicions of fraud in the contest in question, consisting of possible direction of the result and overpricing, with potential damage in the order of R$ (…) for the total 60 months of the contract;
b) the auctioneer of the event, Mr. (..), has already been laos telegram data fined by the TCU in R$ (…) within the scope of TC Process 028.842/2017-0, for practices similar to those identified here ;
c) the company that won the contest has already benefited from other procedures carried out by the same team/auctioneer, where the process was conducted in the same way, with the same illegalities ;
d) the company Ikaros Serviços de Segurança Ltda participated in the bidding process and tried in every way to express itself during the session, which was not allowed by the auctioneer, who closed the Comprasnet chat and did not allow the company to ask questions ;
e) the winning company did not have the courage to touch on the items in the appeal that demonstrated the possible existence of fraud and the auctioneer, demonstrating absurd courage or certainty of impunity, denied the intention to appeal without due motivation and maintained the decision;”. (emphasis added) [2]
The Technical Unit partially upheld the Representation and proposed that the auctioneer be fined and declared ineligible to hold a commissioned position or position of trust, as his conduct made it difficult to rectify the proposals and resulted in the disqualification of six bidders, thus violating the TCU's case law.
Based on the documentation in the case and the proposal submitted by the technical department, the content of which highlighted that the current irregularity is quite similar to another already investigated by the TCU (PE 1/2017), the Rapporteur Minister decided to review the auctioneer's employment history. He then found that such research had already been developed and reported in Ruling 1412/21, which he appropriated and used for the purpose of comparing the conduct of electronic auctions and supporting his vote.
In fact, the auctioneer was fined in 2017, as he requested the bidders, within a short period of time and in an extremely generic manner, to make the necessary corrections to the price formation spreadsheets given the inconsistencies identified. Due to this erroneous conduct of the bidding process, and for not providing the clarifications requested by one of the bidders, according to the TCU, “the public authority distanced itself from the collaborative stance required by objective good faith, violated the duties of transparency and publicity, as well as disrespected the constitutional principles of adversarial proceedings and full defense”. [3]
“a) there are suspicions of fraud in the contest in question, consisting of possible direction of the result and overpricing, with potential damage in the order of R$ (…) for the total 60 months of the contract;
b) the auctioneer of the event, Mr. (..), has already been laos telegram data fined by the TCU in R$ (…) within the scope of TC Process 028.842/2017-0, for practices similar to those identified here ;
c) the company that won the contest has already benefited from other procedures carried out by the same team/auctioneer, where the process was conducted in the same way, with the same illegalities ;
d) the company Ikaros Serviços de Segurança Ltda participated in the bidding process and tried in every way to express itself during the session, which was not allowed by the auctioneer, who closed the Comprasnet chat and did not allow the company to ask questions ;
e) the winning company did not have the courage to touch on the items in the appeal that demonstrated the possible existence of fraud and the auctioneer, demonstrating absurd courage or certainty of impunity, denied the intention to appeal without due motivation and maintained the decision;”. (emphasis added) [2]
The Technical Unit partially upheld the Representation and proposed that the auctioneer be fined and declared ineligible to hold a commissioned position or position of trust, as his conduct made it difficult to rectify the proposals and resulted in the disqualification of six bidders, thus violating the TCU's case law.
Based on the documentation in the case and the proposal submitted by the technical department, the content of which highlighted that the current irregularity is quite similar to another already investigated by the TCU (PE 1/2017), the Rapporteur Minister decided to review the auctioneer's employment history. He then found that such research had already been developed and reported in Ruling 1412/21, which he appropriated and used for the purpose of comparing the conduct of electronic auctions and supporting his vote.
In fact, the auctioneer was fined in 2017, as he requested the bidders, within a short period of time and in an extremely generic manner, to make the necessary corrections to the price formation spreadsheets given the inconsistencies identified. Due to this erroneous conduct of the bidding process, and for not providing the clarifications requested by one of the bidders, according to the TCU, “the public authority distanced itself from the collaborative stance required by objective good faith, violated the duties of transparency and publicity, as well as disrespected the constitutional principles of adversarial proceedings and full defense”. [3]