Reflections on the possibility to extend the contract term (validity period) regarding continuous acquisition of goods as a way to satisfy the public necessities

Abstract

This paper intends to analyze the possibility of an extensive interpretation of article 57, II, of the Brazilian Federal Acquisition Regulation (Law n. 8.666/1993), making possible the extension of the contract validity period regarding the continuous acquisition of goods or supplies. Starting from the analysis of the “continuous” concept, brought by the Brazilian Federal Acquisition Regulation, it is intended to demonstrate that “continuity” should not be only applied to services contracts, but also be extended to the acquisition of goods or supplies, once observed some specific requirements. Jurisprudential divergence existence will be shown, especially in the Accountability Courts, which makes the procurement officer feel insecure about applying this presented understanding, even when the public interest is evident. It will be shown, through this interpretation, that it is a possibility to lead to positive and relevant consequences concerning financial, logistic, operational, and patrimonial issues relative to public procurement procedures in several essential sectors to the public policies. This paper analyzes specific and concrete situations that illustrate the necessity to be given, under certain conditions, an extensive interpretation of the renovation of the validity period in administrative contracts regarding the continuous acquisition of goods. Finally, the paper discusses the pertinence of such a discussion in the scope of Bill n 6.817/2017, which establishes rules for public contracts and repeals Law n. 8.666/93, demonstrating that the discussion about contracts of continued supply of goods is already being treated even within the scope of the Legislative Branch.