The new Law on Administrative Procurement and Contracts, published on April 1 (Law No. 14,133/2021), was well received by the market upon reiterating the need to insert the issue of sustainable national development into public procurement processes in Brazil.
Although the term "sustainable development" has already been addressed in other normative acts relating to procurement, as in Law No. 12,462/2011, which deals with the Differentiated Procurement Regime, the new procurement law promotes inclusion of sustainability in public tenders in a practical way, since it provides more specifically for the environmental issues that must be taken into account so that the concepts of the Brundtland Our Common Future Report of 1987 can actually be adopted.
During the preparatory phase of the procurement, it is necessary to prepare a technical study, which should contain, among other items, details on potential environmental impacts and respective mitigating measures and issues related to reverse logistics, energy consumption, and other natural resources.
The new law on procurements provides for greater environmental control in the criteria for publishing the notice, such as the requirement that the contractor obtain environmental licenses. The law also establishes that the processing of environmental licensing processes of works and services tendered must occur as a priority before the environmental agency.
In order to guarantee sustainable procurements, Law No. 14,133/2021 innovates and surprises positively in establishing the possibility of using the criterion of best sustainable price, instead of lower price, in order to define the winning company. That is, the preference for goods and/or services that have less environmental impact on the production process is established.
Another innovation is the possibility of dispensing from the bidding process the services of collection, processing, and marketing and sale of recyclable or reusable municipal solid waste conducted by associations or cooperatives formed by low-income individuals.
It is noted that the public administration follows the global market trend in requiring enterprises to take environmental, social, and governance criteria, known as ESG, and meet environmental and alternative laws aimed at lessening impact on the environment.
The new procurement law has a clear concern with the environmental impacts arising from the services to be contracted and establishes measures that will contribute to sustainable national development. In this scenario, ventures that show an interest in winning procurements processes should be adapted to environmental legislation.