Brazil, Federal Court of Accounts, 16 March 2022, Acórdão No. 552/2022, Processo No. 042.955/2021-1
Case overview
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Link to the full text of the decision
General Summary
In the context of the COVID-19 pandemic, the Claimant filed an action, "representação" for possible irregularities in the procurement process carried out by the Ministry of Health for the contracting of the storage and transportation service of the vaccine, from the manufacturer Pfizer. The irregularity referred to the extension of the public contracts.
The Court determined that the Ministry of Health should not extend contracts 321/2021 (transportation services) and 323/2021 (storage services) signed. When replacing these contracts, it must present an updated evaluation of the market offer for the intended services, including a price investigation, to proceed with the regular contracting by bidding in the public procurement process.
Facts of the case
In the context of the COVID-19 pandemic, the Claimant filed a "representação” action, about possible irregularities in the public procurement of a company. Based on Act 14.124/2021, the irregularity would lie in the absence of bidding and due process for the storage and transportation service of Comirnaty vaccines against COVID-19 of the manufacturer Pfizer. The Court heard about these irregularities.
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Reasoning of the deciding body
The Court Analyzed the contractual conduct of the entity. It identified that, for Pfizer vaccines to be delivered in 2022, the decision was to contract in the temperature range -90°C to -60°C. Moreover, in consideration of the manufacturer's guidance, which indicated conditions of maintenance at ultra-low temperature and was agreed at the tripartite level (federal, states, and municipalities), to ensure longer shelf life for the vaccines and conservation of the properties of the immunobiological components for up to nine months.
The certificates presented were only valid to prove the provision of transport services, but not those of storage, which constitutes an irregularity in the hiring procedure of the company.
Besides, using the term up to 60 months of Law 8.666/1993 is something that sounds logically incompatible with an emergency phase of a pandemic, whose duration, by common sense, is not expected to go that far. That is why the laws specially instituted to regulate the pandemic period established short terms for exceptional contracts for certain types of services.
Conclusions of the deciding body
The Court ordered the Ministry of Health not to extend Contracts 321/2021 (transportation services) and 323/2021 (storage services) signed with a company. In addition, it determined that when replacing these contracts, the Ministry of Health should make a prior updated assessment of the market offer for the intended services, including a new price survey, and proceed with the regular contracting through a bidding process.
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Other notes
On "instance" and "type of procedure": Representation (“representação”) is an instrument that triggers the Court's audit of illegalities in the management of federal public resources. Unlike denunciation, it is not stealthy. Only control organs and other political agents and members of the judiciary can present this representation.
On "outcome of the decision": the decision did not respond to any claim since it is a kind of automatic control by the Court of the administrative management. Nevertheless, its result was satisfactory.
On "type of measure challenged": the waiver of the bidding process carried out by the Ministry of Health for contracting the storage and transport service of the vaccine from the manufacturer Pfizer.
