The First Chamber of Brazil’s Superior Tribunal de Justiça (STJ) ruled that a sanction of temporary suspension from participating in public procurement procedures, imposed under the former Public Procurement Law (Law No. 8.666/1993), continues to produce its full legal effects even after the enactment of the new Public Procurement Law (Law No. 14.133/2021). According to the court, the new statute does not restrict the scope of sanctions already applied under the previous legal framework.
Under the interpretation adopted by the STJ, when a company receives a suspension penalty based on the former law, the prohibition applies broadly across the entire public administration, including federal, state, and municipal authorities, for the duration of the sanction. The court reaffirmed that the sanction prevents the company from participating in bidding procedures or entering into contracts with any public entity while the penalty remains in effect.
The case arose from a dispute concerning a public tender conducted by the state of São Paulo in 2022 to hire sterilization services for a public hospital complex in Guarulhos. A competing company argued that the winning bidder should not have been allowed to participate because it had been sanctioned by the municipality of Leme (São Paulo) with a suspension from bidding between July 2021 and July 2022. Since the state tender occurred within that period, the challenger claimed that the company was legally barred from participating.
The São Paulo State Court initially held that, because the procurement took place after the new procurement law entered into force, the sanction should be interpreted according to the more favorable rule introduced by the new law, which limits the effects of such penalties to the government entity that imposed them. However, the STJ rejected this reasoning. The court concluded that sanctions imposed under the former legal regime must continue to follow the rules applicable at the time they were imposed.
In its decision, the STJ also emphasized that it is not possible to create a “hybrid regime” combining only the most favorable elements of both the old and the new legislation. Although the new law restricts the territorial scope of certain sanctions, it also increases the maximum duration of the penalty. Therefore, selectively applying only the favorable aspects of the new law would be inconsistent with principles governing administrative sanctions and legal certainty.
The court ultimately declared the contract resulting from the procurement procedure null and void, as the company should have been considered ineligible during the period of suspension. Nevertheless, recognizing the essential nature of the services involved—related to hospital sterilization processes—the STJ allowed the contract to remain temporarily in force for up to six months, giving the public administration sufficient time to conduct a new procurement process without compromising critical healthcare services.
Overall, the ruling clarifies that the new Public Procurement Law does not retroactively modify sanctions imposed under the previous legal framework. For companies subject to administrative penalties under the former law, the effects of those sanctions remain valid and enforceable across all levels of public administration until the sanction period expires.
Photo: Gil Ferreira
