On March 31, 2023, Brazilian President, Luiz Inácio Lula da Silva, issued Provisional Measure no. 1,167, postponing the definitive replacement of the 1993 Public Procurement Law (8,666/1993) for the New Public Procurement Law (14,133/2021) until December 30, 2023.
Although the New Public Procurement Law has been in effect since April 1, 2021, its application would only become mandatory for procedures initiated on April 1, 2023. In the meantime, public entities could initiate hiring procedures based on either the New Public Procurement Law or Law 8666/1993.
With the extension, the application of the New Public Procurement Law remains optional until the end of the year. Note that when selecting one of the laws, the public entity must apply it both for the hiring procedure and for the contractual terms and conditions.
In more detail
Provisional Measure no. 1,167/2023 amended art. 193, II, of the New Public Procurement Law (which originally provided for the repeal of Law no. 8,666/1993 after two years from its entry into force), together with art. 191 (which allowed the public administration to apply Law no. 14,133/2021 or Law no. 8,666/1993 while the latter was not repealed).
The extension occurred mainly due to demands by mayors, who requested the extension of the deadline so that municipalities could structure themselves and adapt to the new requirements and procedures set forth in Law 14133/2021.
It will then be possible to apply Law 8.666/1993 as the governing rule for hiring, provided that the publication of the public notice, request for proposal, or act authorizing direct hiring occurs by December 29, 2023.
This measure also solves a doubt in the original text of the New Public Bid Law, which was unclear in relation to the “cut-off date” to stop applying Law 8.666/1993, which could be interpreted as the beginning of the public contracting procedure (internal phase of the entity) or the date of the publication of the public notice, request for proposal or authorizing act — which led the Federal Audit Court to issue a recent decision (now overcome) establishing its position on the time frames. The option chosen must be expressly indicated.
The full text of Provisional Measure 1,167/2023 can be accessed on the link (only in Portuguese).