ON THE ENFORCEABILITY OF PRICES IN THE CONTRACTING OF ENGINEERING WORKS AND SERVICES

Abstract

This article aims to analyze the presumption of unfeasibility of bids in public procurement of works and engineering services, as established in paragraph 4 of article 59 of Law No. 14,133/2021. The legal provision states that bids priced below 75% of the estimated budget shall be deemed unfeasible, which has generated doctrinal and jurisprudential controversies regarding its nature—whether absolute or relative. The methodology adopted is qualitative, with a legal-dogmatic approach, based on bibliographic and documentary review, jurisprudential analysis, and a case study involving a municipal procurement. The research demonstrates that a literal application of the rule may undermine efficiency, economy, and fairness in bidding processes, especially when it disregards the operational structure of companies, market conditions, and the technical feasibility of the contract. The study supports the interpretation of relative presumption, allowing the bidder to prove the feasibility of its proposal through technical documentation, in line with prevailing understandings of the Federal Court of Accounts and the São Paulo State Court of Justice. The conclusions highlight the need for diligent and proportionate action by the Public Administration, taking into account the specific context of each tender, to prevent unjustified exclusion of economically advantageous bids.