Issued on April 25, 2023 by the Secretariat of Management and Innovation of the Ministry of Management and Innovation in Public Services, Ordinance Seges/MGI 1,769, which repealed Ordinance Seges/MGI 720/23, provides for the transitional regime referred to in article 191 of Law 14,133/21 – the new Bidding Law.
The transitional regime was established so that the public manager can choose, until December 30, 2023, to bid and contract according to:
- the new Bidding Law;
- the previous Bidding Law (Law 8.666/93);
- the Auction Law (Law 10.520/02); or
- the Differentiated Regime of Public Contracting – RDC (Law 12.462/11).
In addition to these legally established hypotheses, Ordinance Seges/MGI 1,769/23 also refers to Decree No. 7,892/2013, which regulates the Price Registration System. In addition, the new Bidding Law also prohibits – in its article 191, paragraph 1 – the combined application of its rules with the provisions of any of the other rules mentioned.
Thus, Ordinance Seges/MGI 1,769/23 establishes that the bidding processes and contracts filed and instructed based on these previous rules are based on the assumptions that:
- "the publication of the notice or the authorizing act of direct contracting occurs until December 29, 2023" (article 2, I); and
- "the option chosen is expressly indicated in the notice or in the authorizing act of direct contracting" (art. 2, II).
In a didactic way, based on Ordinance Seges/MGI 1,769, public managers must observe the following schedule:
|RITE||DESCRIPTION||INSTRUMENT||DEADLINE FOR INSERTION INTO THE SYSTEM||DEADLINE FOR PUBLICATION IN THE OFFICIAL GAZETTE|
| ||All bidding modalities provided for in Laws 8,666/93, 10,520/02 and 12,462/11, including bids for price registration.||Edict||Until December 28, 2023, at 4 p.m.||Until December 29, 2023|
| ||All waivers and unenforceability of bidding whose values do not exceed those provided for in items I and II of article 24 of Law 8,666/93 (according to Normative Guidance AGU 34/11).||Notice or act of authorization/ratification||Until December 29, 2023||Not applicable|
| ||All bidding waivers not contemplated in item (2).||Act of authorization/ratification||Until December 28, 2023, at 4 p.m.||Until December 29, 2023|
| ||All unenforceability not mentioned in item (2).||Act of authorization/ratification||Until December 28, 2023, at 4 p.m.||Until December 29, 2023|
In addition to these deadlines, Ordinance Seges/MGI 1.769/23 establishes that:
- the minutes of price registration governed by Decree 7.892/13, during their validity, may be used by any organ or entity of the federal, municipal, district or state Public Administration that has not participated in the bidding process, with the authorization of the managing body (article 4);
- contracts entered into with an indefinite term of validity must be terminated by December 31, 2024 and subsequent contracts must be made in accordance with the new Bidding Law (article 5);
- the "accreditations carried out, pursuant to the provisions of the caput of article 25 of Law No. 8,666, of 1993, shall be extinguished by December 31, 2024" (article 6).
Thus, despite the survival obtained by the previous rules through Provisional Measure 1,167/23 – which extended them until December 30, 2023 – the situation is headed so that, based on the time limits mentioned above, the new Bidding Law becomes, finally, the only valid rule on the matter, which is already taking a long time to occur.