André Camargo Galvão e Frederico Morais Menezes Abdul-Hak Antelo

Through the virtual judgment closed on March 5, the plenary of the Supreme Federal Court (STF) decided, by a majority of votes, that Petróleo Brasileiro S.A. (Petrobras) is not subject to Law No. 8,666/93 (Bidding Law), a rule that provides for the bidding regime of the Public Administration.

The decision was given in the event of Extraordinary Appeal, brought by the Fleet of Oil Tankers of Sul Ltda. (Petrosul) and Brasilmar Navegação S.A. (Brasilmar), which sought to reform the decision of the Court of Justice of Rio Grande do Sul (TJ-RS) which considered valid (i) the termination by Petrobras in 1994 of a contract for chartering vessels for cargo transportation, concluded between Petrobras and Petrosul; and (ii) the subsequent contracting by Petrobras of another company without compliance with the provisions of the Bidding Law. At the time of the decision, the TJ-RS understood that Petrobras would not submit to art. 1, sole paragraph, of the Bidding Law.^[1]

The majority of the Ministers of the Supreme Court followed the vote of the rapporteur, Dias Toffoli, by disavowing extraordinary appeal (RE) no. 441280, thus consolidating the understanding of the Supreme Court regarding the absence of the need for Petrobras to observe the procedures provided for in the Bidding Law. This decision was founded on Article 173, §1, of the Federal Constitution,^[2] the wording of which establishes the subjection of mixed-economy companies to the own regime of private undertakings.

The rapporteur minister also stressed that the contracts concluded by Petrobras for the acquisition of goods and services should follow the Regulation of the Simplified Bidding Procedure of Petrobras, regulated by Decree No. 2,745/98.

According to the vote of the minister rapporteur, the regime provided for in the Bidding Law is incompatible with the performance of Petrobras, because mixed economy companies (petrobras case) are required to have their own agility of companies operating in the private market, driven by intense competition between companies:

"Therefore, I believe that it is inapplicable to mixed-economy companies that exploit the economic activity of private companies, thus competing in the market, with the narrow regime established in Law No. 8,666/93, because it is not possible to reconcile the regime provided for in Law No. 8,666/93 with the agility of this type of market, which, as we know, is driven by intense competition between the companies operating in it.

The agility required of companies operating in the market is absolutely incompatible with a rigid bidding system, such as this imposed by said Law No. 8,666/93."

Ministers Luiz Fux, Ricardo Lewandowski, Celso de Mello (retired), Gilmar Mendes and Alexandre de Moraes followed the vote of the rapporteur minister. They were against the ministers Marco Aurélio Mello, Edson Fachin, Rosa Weber and Carmen Lucia.

^[1] Art. 1 - This law establishes general rules on bids and administrative contracts relevant to works, services, including advertising, purchases, disposals and leases within the powers of the Union, states, the federal district and municipalities.

Single paragraph. The regime of this law, in addition to the organs of direct administration, special funds, municipalities, public foundations, public enterprises, mixed-economy companies and other entities directly or indirectly controlled by the Union, States, Federal District and Municipalities are subordinated.

^[2] Art. 173, § 1 - The law shall establish the legal status of the public company, the mixed-economy company and its subsidiaries that exploit economic activity of production or commercialization of goods or services, with:

(...)

II - the subjection to the legal regime proper to private companies, including civil, commercial, labor and tax rights and obligations;