GROSS ERROR IN “S” SYSTEM HIRING
Posted: Wed Feb 19, 2025 5:44 am
One of the greatest fears of employees involved in the contracting process is being held liable for their actions, or even for any omissions. In the public contracting process, from the planning phase to the final receipt of the object, there are conducts or acts of omission that may give rise to the agent being held liable.
It should be noted that, in the Brazilian legal system, there is independence between the civil, criminal and administrative instances, so that the same conduct can lead to liability in all three spheres and may result from willful or negligent conduct.
Fraud, according to Cezar Roberto Bitencourt, is “the awareness and will to carry out the conduct described in a criminal type, or, in Welzel's expression, 'fraud, in the technical criminal sense, is only the will to act oriented towards carrying out the type of crime”. [1] It can be inferred that in fraud there is the intention of the agent to lebanon telegram data carry out a certain conduct with awareness of the illegal or uneconomic result in the public contracting process.
Fault, on the other hand, “is the failure to observe the objective duty of care manifested in conduct that produces an unintended but objectively foreseeable result”. Fault may arise from negligence, imprudence or lack of skill, as Cezar Bitencourt explains once again:
“Recklessness is the practice of risky or dangerous conduct and is of a commissive nature. Reckless conduct is that which is characterized by the agent’s untimeliness, rashness, foolishness or immoderation.
Negligence is the carelessness in acting, the lack of precaution, the indifference of the agent, who, although able to take the necessary precautions, does not do so. It is passive unpredictability, carelessness, inaction. It is not doing what should have been done before the careless action.
Incompetence is the lack of capacity, aptitude, unpreparedness or insufficient technical knowledge to practice an art, profession or craft. [2]
For the purposes of this article, it is necessary to analyze liability for fault [3] , especially in view of the changes promoted in the Law of Introduction to the Rules of Brazilian Law – LINDB. In fact, art. 28 of the aforementioned Law prescribes that “the public agent shall be personally liable for his/her decisions or technical opinions in case of fraud or gross error”. It is clear from the outset that the rule does not mention fault at all, but only fraud or gross error.
The changes made to the LINDB have the clear intention of providing greater legal certainty to agents and avoiding abuses in the control exercised by agencies in relation to contracting processes, as it is not uncommon, unfortunately, for liability to arise purely and simply from disagreements regarding a legal provision or even from disagreeing with the judge's personal opinion.
In this sense, it is important to differentiate guilt from error, as José Anacleto Abduch Santos rightly points out:
“At first glance, it could be argued that error would be a category subsumed under the notion of fault in the strict sense, that is, negligent, reckless or unskilled. However, this is not legally correct. Fault in the strict sense is characterized by the lack of an objective duty of care.
However, error is an independent legal category. Conduct tainted by error will not necessarily originate from a lack of objective care. It will not necessarily be imprudent, unskilled or negligent, but rather that which occurs due to a false or incorrect representation of reality that operates, or may operate, significant effects on the plane of the manifestation of will” [4] . (emphasis added)
From the above, it can be concluded that culpable conduct arises from a lack of duty of care, while error is related to a false perception of reality. According to this distinction, therefore, it is possible to commit a culpable act without there having been an error, as well as an error without the elements of fault – negligence, imprudence or lack of skill. Now, the agent may have acted diligently and cautiously, but based on a false perception of reality, may have directed his conduct with error.
It should be noted that, in the Brazilian legal system, there is independence between the civil, criminal and administrative instances, so that the same conduct can lead to liability in all three spheres and may result from willful or negligent conduct.
Fraud, according to Cezar Roberto Bitencourt, is “the awareness and will to carry out the conduct described in a criminal type, or, in Welzel's expression, 'fraud, in the technical criminal sense, is only the will to act oriented towards carrying out the type of crime”. [1] It can be inferred that in fraud there is the intention of the agent to lebanon telegram data carry out a certain conduct with awareness of the illegal or uneconomic result in the public contracting process.
Fault, on the other hand, “is the failure to observe the objective duty of care manifested in conduct that produces an unintended but objectively foreseeable result”. Fault may arise from negligence, imprudence or lack of skill, as Cezar Bitencourt explains once again:
“Recklessness is the practice of risky or dangerous conduct and is of a commissive nature. Reckless conduct is that which is characterized by the agent’s untimeliness, rashness, foolishness or immoderation.
Negligence is the carelessness in acting, the lack of precaution, the indifference of the agent, who, although able to take the necessary precautions, does not do so. It is passive unpredictability, carelessness, inaction. It is not doing what should have been done before the careless action.
Incompetence is the lack of capacity, aptitude, unpreparedness or insufficient technical knowledge to practice an art, profession or craft. [2]
For the purposes of this article, it is necessary to analyze liability for fault [3] , especially in view of the changes promoted in the Law of Introduction to the Rules of Brazilian Law – LINDB. In fact, art. 28 of the aforementioned Law prescribes that “the public agent shall be personally liable for his/her decisions or technical opinions in case of fraud or gross error”. It is clear from the outset that the rule does not mention fault at all, but only fraud or gross error.
The changes made to the LINDB have the clear intention of providing greater legal certainty to agents and avoiding abuses in the control exercised by agencies in relation to contracting processes, as it is not uncommon, unfortunately, for liability to arise purely and simply from disagreements regarding a legal provision or even from disagreeing with the judge's personal opinion.
In this sense, it is important to differentiate guilt from error, as José Anacleto Abduch Santos rightly points out:
“At first glance, it could be argued that error would be a category subsumed under the notion of fault in the strict sense, that is, negligent, reckless or unskilled. However, this is not legally correct. Fault in the strict sense is characterized by the lack of an objective duty of care.
However, error is an independent legal category. Conduct tainted by error will not necessarily originate from a lack of objective care. It will not necessarily be imprudent, unskilled or negligent, but rather that which occurs due to a false or incorrect representation of reality that operates, or may operate, significant effects on the plane of the manifestation of will” [4] . (emphasis added)
From the above, it can be concluded that culpable conduct arises from a lack of duty of care, while error is related to a false perception of reality. According to this distinction, therefore, it is possible to commit a culpable act without there having been an error, as well as an error without the elements of fault – negligence, imprudence or lack of skill. Now, the agent may have acted diligently and cautiously, but based on a false perception of reality, may have directed his conduct with error.