THE LEGALITY OF THE REQUIREMENT OF INTEGRITY PROGRAMS IN PUBLIC PROCUREMENTS IN THE LIGHT OF THE GUIDING PRINCIPLES OF THE BIDDING PROCESS

Abstract

The present study addresses integrity programs within the scope of public tenders and administrative contracts, particularly with respect to the legality of instituting the legal duty to implement such programs as a condition for the implementation of administrative contracts. In this vein, the question is whether this obligation is supported by the principles guiding the tendering legislation and the values enshrined in Article 37 of the Federal Constitution of 1988. The deductive and descriptive method was used, based on a theoretical and doctrinal review, in order to investigate the legal grounds used by researchers and experts opposed and favorable to the institution of this requirement, so as to counter the arguments sustained by both doctrinal sectors regarding the debate. In the end, it was found that, despite the understandable concerns of legal scholars with respect to a supposed threat to the principles of competitiveness, competitive equality and efficiency, it is not possible to affirm that the requirement of integrity programs would violate such values, at least not in the manner currently set forth in the legislation, in which the necessary competitive nature of public bids is observed, with no harm to advantage or efficiency.