Bidding Law Research Articles

Law on Bidding in Capital Construction: Current Status of Regulations, Limitations and Proposed Solutions

Bidding is part of procurement activities between businesses, between businesses and state agencies. This is a form of civilized competition in the market economy, a special transaction method for large-scale transactions that require efficiency and transparency. The nature of bidding is a form of civilized competition in a market economy. Bidding activities are carried out in many fields such as construction, equipment procurement, project implementation, etc. Therefore, all professional businesses, whether Vietnam or foreign, no matter what field, any model, if it has enough capacity, cannot be ignored in bidding. Laws on bidding in the field of capital construction play an important role in managing and regulating bidding activities in the construction industry. Currently, Vietnam law has documents regulating public procurement such as Bidding Law 2013 effective from July 1, 2014, Decree No. 63/2014/ND-CP stipulates detailed implementation of several articles of the Bidding Law on contractor selection, etc. Some issues related to the current status of provisions of Vietnam law on public bidding and procurement activities are the selection of bidding form, bidding process, healthy competition, openness, and transparency in public bidding activities. This study analyzes the regulations and limitations of the law on bidding in the field of capital construction, thereby proposing solutions to improve the law on this issue.

政府采购法和招标投标法协调适用研究

政府采购法和招标投标法协调适用研究

论建筑工程领域下“阴阳合同”的效力认定——兼议《招标投标法》第46条

论建筑工程领域下“阴阳合同”的效力认定——兼议《招标投标法》第46条

Chief Editors' Note

Dear Readers,We are glad that the ThirdIssue of the International Journal of Law in Changing World is published. Authors from different partsof the world presentedtheir papers on current problems of law in Brazil, Cameroon, Italy, and Russia. Our authors gave the Journal the honor to publish papers devoted to different aspects of law and regulations that the modern world faces. This Issue presents the paper “Duration and Extinction of Administrative Contracts in the New Brazilian Bidding Law”. In it, professorsRafael Carvalho Rezende Oliveira and ThiagoGomes do Carmo address the causes and consequences of the termination of administrative contracts due to the recent enactment of New Law on Bids and Administrative Contracts.Next paper is entitled “Tools to Stimulate Blockchain: Regulatory Sandboxes, Special Economic Zones and Public Private Partnerships", where professors Elizaveta Alexandrovna Gromova and Daniel Brantes Ferreira presents a review of the most efficient tools to stimulate the Blockchain. The results of the research made by Natalia Igorevna Shumakovaand Elena Viktorovna Titova represented in the paper“Freedom of religion and conscience in China and Russia: in Search of New Commons” discuss the possibility of creating a new convention by China and Russia for protecting the fundamental human right to freedom of religion and conscience on a new international level, independent from the West.The paper “Impact of Digital Technologies on Criminal Procedure in Russia and India: Comparative Legal Aspect” written byElizaveta Igorevna Popova demonstrates us the impact of thedigital technologies on criminal procedure in Russia and India.Professor Enow Godwill Baiye and Fongwa Kesten Ngum are talking about the role of international law for regulation of relations arising fromGoverningtheSeabedin the paper “The Role of The International Seabed: International law”.The paper “Liability for Trademark Infringement on E-Commerce Marketplaces” written by Anna Vladimirovna Pokrovskaya, aimed to define optimal approaches to the liability regime for the violation of the intellectual property rights in the spheres of digital platforms and marketplaces. nd last but not least is the paper “Assessing Performance in Forensic Hair Examination: A Review”. Eugenio D'Orio, Giuseppe Calabrese, Chiara Lucanto, and Paola Montagna aimed this research to cross-compare multiple knowledge from different research papers on forensic hair examination in order to assess the evolution of the study and technology in this field and for assess new perspective of research and forensic applications.We truly hope you will find this Issue valuable and informative because that is the mission of the Journal –to find solutions to crucial legal issues that arise from the forever-changing world. We want to thank our authors, reviewers and editorial team members for their excellent job, support, and efforts to make this Issue happen. We hope the Journal can inspire academics and researchers to keep expanding their horizons and reducing the research distance between countries. Sincerely yours Editors-in-Chief Elizaveta Gromova and Daniel Brantes Ferreira

OS DESAFIOS DA FASE PREPARATÓRIA DOS PROCESSOS LICITATÓRIOS À LUZ DA LEI FEDERAL Nº 14.133/2021

Although exhaustively extolled as an important element of public management, planning has its application in absolute exception in public entities. With the new premises set out in the New Bidding Law (Law 14.144/2021), in addition to being considered a legal principle, it is a requirement and with serious criminal applications. In this way, through the legal deductive method, based on the interpretation of legislation, jurisprudence and the like, this article aims to present the basic definitions and the primordial elements present in the new law on Planning, as well as challenges that several entities will have to face in the face of the maturity level. It is concluded that it is a moment of evaluation and focus in a short period, aiming to demonstrate the evolution or eventual regression of the aforementioned Federal Law due to its coexistence with the reality of the specific public sector.

The Regulation of the New Bidding Law: Definition of the Institutional Logic Prevalent in a Field

RESUMO Objetivo: a presente pesquisa analisa como ocorrem as definições regulatórias em um campo com participantes que defendem lógicas múltiplas nas aquisições públicas de obras e serviços de engenharia de grande vulto, com foco no seguro-garantia, além de discutir a inclusão de cláusula de retomada e do percentual em relação ao valor do contrato. Marco teórico: este trabalho está inserido na discussão sobre como é constituída uma lógica institucional, que orienta a ação e a estruturação organizacional do campo, dada a competição entre múltiplas lógicas. Método: a pesquisa está focada nas discussões pertinentes ao campo. A coleta de dados foi feita por meio de levantamento documental da análise de discursos na Câmara dos Deputados, bem como entrevistas com atores relevantes do campo por meio de roteiro semiestruturado. Resultados: os conflitos entre lógicas são resolvidos por meio de combinações com outras lógicas do campo, enfatizando o poder de coalizões de atores para definir temas de regulamentação. O estudo apontou a forma como os participantes conseguiram reduzir a influência da lógica defendida pelo mercado de seguros, em favor do interesse de construtoras na redação do projeto, mostrando que lógicas de mercado podem também entrar em contradição entre si. Finalmente, constatou-se que elementos exógenos à lógica em construção são fundamentais na sua formulação. Conclusões: o estudo indica que a lógica institucional que se torna prevalente em um campo complexo resulta da imposição de uma coalizão de atores, combinando elementos de diferentes lógicas. Entretanto, as coalizões podem ser distintas para cada questão examinada.

LICITAÇÃO: UM OLHAR ACERCA DOS INSTRUMENTOS DE CONTROLE E TRANSPARÊNCIA DE RECURSOS PÚBLICOS

The purpose of this article is to demonstrate that the performance of the public administration in the contracting of goods and services is limited, and that the bidding process must take place, however law No. 8,666 / 93 or the bidding law allows the waiver of the bidding, that is, goods or services, provided that the state of urgency or public calamity is proven, as occurred in the State of, Rondônia, which purchased 400 breathing apparatus for the treatment of Covid-19, however some devices were defective and the state blocked the goods and passport from the company that sold the devices. Through a qualitative bibliographic search Researches were carried out in the SCIELO electronic databases, in the period from 2016 to 2021, where the descriptors in Portuguese were used: Bidding; Transparency; Corona virus; Public calamity; Crisis of respirators. As inclusion criteria, 10 original articles published in the Portuguese language published between the years 2016 to 2019 were used.

Unsustainability Risk of Bid Bonds in Public Tenders

Public works contracts are commonly priced and awarded through a tender process. Each bidder joining the tender must underwrite a bid bond that guarantees their fitness as contractors in case of a win. The winning contractor also needs to underwrite a performance bond before entering the contract to protect the procuring entity against the performance risk arising during the execution phase. This study addresses the case when sureties refuse to issue the performance bond, despite having issued a bid bond to the same subject. A creditworthiness variation of the contractor during the tender or an excessive discount of the contract’s price may lead to this outcome. In that case, all the subjects involved are damaged. The surety who issued the bid bond has to indemnify the procuring entity. The contract award is nullified, which is financially harmful to both the contractor and the procuring entity. We show that sureties adopting a forward-looking risk appetite framework may prevent the demand for unsustainable performance bonds instead of addressing it by rejecting the bidders’ requests. The Solvency II regulatory framework, the Italian bidding law, and actual historical data available from the Italian construction sector are considered to specify a simplified model. The probability of unsustainable tender outcomes is numerically estimated by the model, together with the mitigating impact of a surety’s proper strategy.

Technological Innovations in Brazil - Public Contract Legislation - A New Dimension of Sustainable Development

The study discusses the elements of technological innovation present in Law 8.666/1993 that can be considered promoters of sustainable development through public procurement. The research aims to identify elements related to “technological innovation” present in Law 8.666/1993, a public administration bidding law in Brazil, in comparison with its elements of “sustainability”, which can be considered propellants of sustainable development. Based on the contribution of the bibliographic references that deal with sustainability and technological innovations, it analyzes the importance of technology in bidding as a promoter of sustainable development. It is an exploratory study; the research is bibliographic, and the method of analysis is documentary, with content analysis. The results show an elevated index of elements regarding “technological innovations” present in the text of the current legal basis, when compared to the number of elements on “sustainable development” present in the same legislation. This study proposes the consideration of technological innovation as a dimension of sustainable development, driven by Law 8.666/1993, in view of the high content of referents to technological innovation present in its text.

Health manager at SES Tocantins: Evaluation of knowledge and competencies

This is an exploratory descriptive study, whose main objective is to characterize the profile of the health manager, through the mapping of knowledge and skills. With regard to knowledge and application of the laws that govern the bidding process, 93% of respondents know the bidding laws and use them in their daily work, while 6.7% have knowledge about the subject, however, they do not use it in the performance of their tasks. Regarding the legal bases of SUS, it is known for only 73.3% of the sample. The data show that 80% of professionals know the LRF. About LOA, only 40% of the interviewed professionals claim to know it. When the subjects were asked about their knowledge about PPA, only 60% said they knew the instrument. SIOPS is known to only 40% of the group. 86.7% of professionals know the RAG. PPI is known by 66.7% of the interviewed professionals. As for the PS, only 66.7% claim to know it, the PES is known by 86.7% of the interviewees. When asked about the priority agenda, 66.7% said they knew it. Some managerial skills are highly encouraged, others are not. Among those stimulated, they are: openness to change, ethics and professionalism and quality awareness, with 46.7% of respondents responding positively to these stimuli. Other skills such as acting preventively and expressing themselves critically (40% each) and knowledge about health policies (53.3%). In addition, we can see: teamwork (40%), communication (46.7%) and strategic vision (33.3%). Other skills are reasonably encouraged: initiative and creativity; and ability to lead people (26.7% each). 40% of managers do not feel encouraged to participate in decision-making processes. At the end of the study, the influence of the managers’ profile on the improvement of management practices was noticed, since it showed the potentialities and challenges faced and will serve as a basis for the process of permanent qualification of the professionals involved in management, translated into more effective and efficient, provided by the knowledge and use of mechanisms to support SUS management.

A teoria do produto bruto mitigado como alternativa para o ressarcimento de danos ao erário nas fraudes em contratações públicas

Apesar de encontrar amparo expresso na Lei Geral de Licitações (Lei n. 8.666/93), o ressarcimento da íntegra do contrato nos casos de ilícitos e fraudes em contratações públicas ainda é medida excepcional, lastreada na interpretação dos tribunais pátrios de que tal medida acarreta enriquecimento sem causa da Administração Pública. A fim de contornar esse entendimento e, ao mesmo tempo, garantir que as sanções aplicadas tenham força dissuasória de novos ilícitos, as Cortes de Contas desenvolveram a teoria do produto bruto mitigado, que pressupõe a restituição tanto de eventual sobrepreço praticado pelo contratado de má-fé, quanto do lucro sobre a parte que ele efetivamente executou. Embora as decisões judiciais não façam menção nominal à teoria, seus fundamentos têm ganhado cada vez mais espaço na jurisprudência e representa uma alternativa viável e juridicamente robusta à medida mais gravosa representada pela devolução da íntegra do contrato.

Cooperativas de trabalho: sustentabilidade, identidade jurídica e direito de contratar com a administração pública

A Edição da Lei nº 12.349/2010 e da Lei nº 12.690/2012 representam o novo regramento jurídico para a contratação de cooperativas de trabalho pela Administração Pública, ao estabelecer, respectivamente, a ampliação do caráter competitivo dos certames, com proibição de restrições à participação de cooperativas e instituir o Programa Nacional de Fomento às Cooperativas de Trabalho – PRONACOOP. Nesse contexto, o presente estudo tem por objetivo realizar uma análise crítica a respeito dos institutos jurídicos que tratam sobre as condições para a participação de cooperativas de trabalho em certames licitatórios, além de analisar o entendimento do Tribunal de Contas da União (TCU) a respeito da proibição da participação de cooperativas de trabalho em licitações públicas. Ao final, constatou-se que restam superados o Termo de Conciliação Judicial firmado em 2003 entre o Ministério Público do Trabalho (MPT) e a União e a Súmula TCU 281, ante a necessidade de atribuir máxima eficácia a nova normatização jurídica sobre a matéria.

“NOTÓRIA ESPECIALIZAÇÃO” COMO REQUISITO PARA A INEXIGIBILIDADE DE LICITAÇÃO PARA A CONTRATAÇÃO DIRETA PELO PODER PÚBLICO

O presente artigo científico será focado nas hipóteses de contratação direta por meio da Administração Pública. Questiona-se a legalidade desta contratação e se ela está inserida dentro dos princípios que regem a Administração Pública e o processo licitatório, este responsável pela contratação, alienação de bens, obras e serviços do meio público. A hipótese do trabalho baseia-se na relação que o princípio da obrigatoriedade e as exceções de hipótese de licitação, qual a forma que a lei abrange tais exceções. O artigo será dividido em três capítulos, que abordam a administração pública e seus aspectos gerais, bem como a Lei de Licitações, Lei n. 8.666/93; a dispensa e inexigibilidade da licitação, o princípio da obrigatoriedade e as hipóteses de contratação direta. Por fim, a notória especialização como requisito para a contratação direta, segundo art. 25 da Lei de Licitações. O método de abordagem da pesquisa será o dialético, realizado de maneira comparativa e jurídica por meio de consulta ao acervo de biblioteca e pessoais, bem como sites especializados na Internet.

The Socioeconomic Impact of Paralyzed Public Works: Analysis on the University City of the State of Amazonas

The presente research refers to the analysis of the socioeconomic impacts caused by the stoppage of the University City of the State University of Amazonas in the Community Our Lady of Nazareth Lake Test with the objective of investigating the consequences of not observing the principle of efficiency in execution of the work of the University City by its managers, verifying the curret socioeconomic situation of this local population, and finally propose ways to mitigate problems and losses resulting from the stoppage, which is a matter of common interest as it covers all social classes. The research approach is quantitative because it intends to describe a phenomenon of a particular group or Society, its research instrument was the interview. To be eficiente during the execution of a work, it is necessary to have management during the process, so the Executive Branch has instituted laws fo the public Works to be managed efficiently, namely: the Growth Acceleration Program (PAC), instituted by the Decree n° 6.025/2007; the DifferentialContracting Regime (RDC), launched by Law nº 12.462/2011; and the Bidding Law, introduced by Law n° 8.666/1993. These measures sought to reduce delas and stoppages in public Works and the social and economic impacts that might be generated.

Imperfect Schemes in Planning and Construction of Municipalities

With the growing development of China's architecture, the problems existing in municipal engineering have become the focus of public concern. Based on this, study on the lack of law in leading bribes based on the bidding of municipal planning and construction and its imperfect scheme was put forward in this paper. First of all, the needs of municipal engineering planning and construction were expounded, and the present status of the research on the theory of municipal engineering was expounded; then the perfection of the common municipal engineering bidding laws was analyzed, and the content of the architectural planning was mainly introduced; taking the municipal engineering project of a city as an example, the detailed analysis of the planning of the railway station, Central Park and the river of the municipal engineering is made to provide reference for the municipal planning and construction.

Innovative bidding law and consortia for the World Cup and Olympic Games in Brazil

The objective of this research was to describe the types of business networks formed to meet the requirements established by the new bidding law, the Differential Public Procurement Regime, the innovations of this bidding system and the effect on the construction supply chain. This is a descriptive study based on a qualitative–quantitative analysis of a case study of road works on BR-381/MG, in Minas Gerais, Brazil. The units of analysis were the bidding documents, respective contracts, and the construction sites. The results showed that 40 companies took part in the bidding process in 13 cooperative consortia, 8 of which were vertical and horizontal networks, and 5 were vertical networks. An incremental innovation related to the project delivery method was identified between the government and construction companies in Brazil by means of integrated design and build procurement, which changed relationships within the construction supply chain by moving the design supplier into the contractor consortium and improved supply chain management. Moreover, inversion of stages by the new bidding law has increased agility in procurement of public works, as prices are analyzed prior to the other documents.

ECO-EFFICIENCY IN BIDDING PROCESSES TO PURCHASE EVERYDAY SUPPLIES FOR THE BRAZILIAN FEDERAL ADMINISTRATION

Environmental sustainability in the Government’s daily self-management should be the subject of efficient public policies, especially in the management of public assets. In this sense, and through the deductive methodology, the article focuses on the analysis of the operation and management of public administration in dealing with the purchase of everyday equipment, in order to watch out the principles of environmental law and sustainable development, in accordance with bidding laws and eco-efficiency. Thus, the article discusses the steps of public policy and the guiding principles of public administration to pursue eco-efficient acts in its purchases of everyday items. In conclusion, the article attests the failure by the Brazilian federal government to observe the stages of public policy and the bidding legal principles on this matter.

GOVERNMENT INTERVENTION TO PREVENT BANKRUPTCY: THE EFFECT OF BLIND-BIDDING LAWS ON MOVIE THEATERS

I. INTRODUCTION The recent bailouts of the U.S. automotive and banking industries have generated renewed concern about the incentives that government intervention give failing firms in need of significant restructuring. Government intervention to help failing firms has a long and varied history. For example, the Robinson-Patman Act (1936) has been widely criticized for diminishing the cost advantages of larger, more efficient stores at a time when the retail industry was experiencing an increase in average store size in response to changing demographics and lower transportation costs (Posner 1976; Ross 1984). (1) A large literature also suggests a loss in efficiency resulting from governmental restrictions on hostile takeovers, such as the Williams Act, given that the threat of a hostile takeover can be a mechanism for encouraging existing management to restructure failing firms during periods of rapid technological change (Holmstrom and Kaplan 2001). While identifying the impact of a specific government intervention empirically is often difficult, the motion picture industry presents a unique opportunity for a natural experiment of government intervention to save failing firms. As a result of the Supreme Court's 1948 landmark decision, United States vs. Paramount et al., the five major, vertically integrated studios/distributors were no longer allowed to own theaters. The major studios eventually adjusted to this decision and to the changes in postwar demographics by producing a smaller number of large budget films and changing their distribution strategies. An important change in their distribution strategy was an increased use of nonrefundable guarantees and blind bidding, which required theater owners to bid 6 months to 1 year in advance of a film's release. As bids were submitted prior to the completion of the movie, theater owners bid without seeing a finished copy. (2) In response to complaints from theater owners that blind bidding and nonrefundable guarantees were shifting excessive risk to them and would drive them out of business, the federal government initially limited the use of blind bidding but then removed all restrictions in the mid-1970s. Theater-owner trade associations soon convinced 24 states to pass laws banning blind bidding. Seven of the blind bidding laws also limited the use of nonrefundable guarantees. In this study we find that while the strictest of the state laws (that is, the ones that also limited the use of nonrefundable guarantees) helped some theater owners remain in business longer, this effect was short-lived. We show empirically that the laws, whether they limited guarantees, could not offset the impact of significant structural changes in the market. Prior to the passage of the first law, some theater owners were beginning to increase the number of screens per theater in order to diversify risk and exploit economies of scale. We find that the number of screens per theater was the main factor influencing the survival of theater chains during this time period. While our main focus is the impact of the laws on theater survival, for completeness we also offer empirical evidence concerning the conflicting claims of the theater owners and studios about the effect of laws banning blind bidding and guarantees on ticket prices and release dates of new movies. We find no support for theater-owner assertions about higher ticket prices in states that permitted blind bidding and the studios' assertions about longer delays in release dates in states that banned blind bidding. In the next section, we review the historical evolution of the blind-bidding laws and the literature on contractual relations between the studios and theater owners. In Section HI, we present the empirical models and results concerning theater survival. Sections IV and V present the evidence of the laws' impact on prices and delays in release dates. Section VI provides a conclusion. II. …

Out with the old, in with the new? a case study of procurement practices in new york state school districts

School business officials procure goods and services through a variety of methods to deliver educational services in a timely and cost-effective way. Recommended practices by professional procurement organizations have changed in recent years to include new technologies aimed at streamlining and cutting costs of traditional procurement methods. Little is known, however, about what procurement practices school districts adopt-new or old. To partially fill this gap, we describe results from a survey of procurement practices of New York State school districts. Our results reveal that despite the potential for new technologies to make certain practices common among all types of districts, competitive bidding laws and enrollment size dictate the procurement methods used most frequently by school districts.

CHINA’S LEGAL FRAMEWORK FOR PUBLIC PROCUREMENT

Since the mid 1990s, the Government of China has been developing the regulations, laws, and implementing procedures necessary to bring public procurement under a comprehensive administrative and legal framework. This paper traces the history of its development and explains the motivations: improved quality of public projects, increased transparency, development of national standards, and the relationship with trade. It describes the unique aspects and challenges of China's procurement system, notably the existence of two laws (the Tendering and Bidding Law and the Government Procurement Law), the influences of social and economic policy, and the use of procurement agents. The paper concludes with an assessment of future needs to consolidate the various procurement-related laws, develop implementing regulations, disseminate information, and strengthen the oversight function.