Electronic Auction and Advantage in Public Contracts: study in light of the jurisprudence of the Federal Court of Audits

Abstract

The present study aims at verifying if the legal order, in fact, enforces the choice for the electronic auction for the acquisition of common goods and services to the Public Administration. Some assumptions are made based on the reading of res judicata of the Federal Court of Auditors that considers uneconomic the procurement process via physical auction. This a priori understanding of the disadvantage of the physical dispute option is questioned, since there are situations where electronic trading is not the most efficient type of competition. In this investigation, some hypothesis suggest that a physical auction is more convenient for public systems. The decisions of the Federal Court of Auditors that enforce the choice for the dispute over the internet conclude that the electronic trading can only be rule out in specific cases, after justification of the administrator. However, the Court does not present criteria that base their choice for the physical auction. This study tries to show some of these criteria and to prove that, in fact, the margin of discretion to choose the type of dispute is not so narrow. This, considering that Law 15,520 / 2002, which regulates the bidding in the trading modality at national level, assumes the competence of the public agent to carry out the said event through the use of information technology.