Suitability in an Emergency
Article on suitability in an emergency, in connection with the Brazilian government's response to the coronavirus pandemic, O Globo, 2020.
Translated from the original.
The epicenter of the coronavirus crisis, it is said, emerged in December 2019 in Wuhan, China. There was some coverage in the Eastern media, especially in Hong Kong, but the warnings were not noticed by the West, which reacted with great delay, partly as a result of omissions by the Chinese government, which was not transparent.
It is certain that in Brazil the states, city governments and the Union have made efforts to contain the pandemic, with emergency procurement standing out as a necessary formula for strengthening the public health system, observing rules of compliance and prudence.
With the worsening of the situation, Law 13,979, of 6 February 2020, was enacted in Brazil, providing for measures to confront the threat. The law deals with public health emergency procurement, with waiver of public tender in the cases provided therein.
Thus, owing to the public calamity, Brazil rapidly moved toward breaking the rigorous regime of the Fiscal Responsibility Law, loosening public spending in order to meet the needs associated with confronting the new virus.
In this scenario, Provisional Measure 926, of 20/03/2020, was issued, amending Law 13,979/20, which provides on the procedures for acquiring public health goods, services, and supplies.
Several procedures are relaxed: simplification of the terms of reference; waiver of the submission of documents proving tax and labor compliance; and amendments of up to 50% of the contract value.
In addition to these new rules to confront the pandemic, we highlight the traditional tools of Administrative Law intended for moments of crisis, such as requisition of property in the event of imminent public danger; temporary hiring of civil servants without a public examination; waiver of bidding in cases of emergency or public calamity.
This reduction of red tape is part of the culture of emergency in times of public calamity. Market parameters, qualified services, sound contracts and service to the interests of the community — that is what is expected of public sector authorities.
Fábio Medina Osório is a lawyer and was a minister of the Office of the Attorney General of the Union