Inexigibility of bidding for contracting attorney services

Abstract

Public contracts are, as a rule, preceded by a bidding process, by express constitutional provision. However, the Brazilian legal system admits the direct hiring of law firms, through the non-requirement of bidding, observing the requirements set forth in art. 74 of the Law n°. 14.133/2021. The inexigibility of bidding is characterized by the impossibility of competition between bidders. That said, the question arises: can any law service, even if devoid of singularity, be contracted without bidding or, differently, is singularity, in this case, an essential requirement for the configuration of unfeasibility of competition? It is intended, therefore, to examine in detail the institute of inexigibility of bidding for the contracting of attorney services, presenting, in the end, an answer to the presented problem. The hypothesis presented is that the inexigibility of bidding, as a legal exception that it is, can only be admitted when it presents two fundamental requirements, namely, the notorious specialization and singularity of the service. The goal is, therefore, to demonstrate that Law n°. 14.039/2020, which establishes that lawyer services are singular, does not authorize, in all cases, the direct contracting of attorney services by the Public Administration, under penalty of disregarding the constitutional principle of the obligation of bidding. This study is current and of great relevance to the legal community, mainly due to the doctrinal-jurisprudential divergence that surrounds the subject.