By: Leonardo Neri
The new bidding law has brought significant changes to its text, with regard to sustainability and the environment. The new law is in line with the Constitutional provisions and the global vision of environmental preservation, which provides for environmental protection as a principle of the economic order, also supported by national legislation and international guidelines on the subject.
The new law provides that the preliminary technical study must contain, among other requirements, the description of possible environmental impacts and respective mitigating measures, including requirements for low energy consumption and other resources, as well as reverse logistics for the disposal and recycling of goods and waste, when applicable (article 18, §1).
An important requirement will be the assignment of who should be responsible for environmental licensing, with several obligations falling under the contractor's responsibility. However, the issue gains relevance to the extent that failure to obtain environmental licensing grants the Administration unilateral termination of the Administrative Contract, as well as, in the case of licensing being the responsibility of the Public Administration, it will grant the private contractor the right to unilateral termination of the contract.
The Environmental Licensing process, established by the National Environmental Policy – Law 6,938 of 1981 – consists of an administrative procedure by which the competent environmental agency licenses the location, installation, expansion and operation of enterprises and activities that use environmental resources, considered to be effectively or potentially polluting or those that, in any way, may cause environmental degradation, considering the legal and regulatory provisions and technical standards applicable to the case.
However, the law itself, foreseeing the slowness of this procedure, expressly establishes that environmental licensing of engineering works and services tendered and contracted under the terms of this Law will have priority in processing in the bodies and entities that are part of the National Environmental System (Sisnama) and must be guided by the principles of speed, cooperation, economy and efficiency.
In this regard, any delay in obtaining the environmental license, or the impossibility of obtaining it, or any substantial change to the preliminary project resulting from it, even if obtained within the stipulated period, will constitute grounds for termination of the contract, as mentioned above. It should be noted that termination due to the fault of the contractor or the fault of the contracting party, depending on the licensing obligation provided for in the Notice, may give rise to compensation, either in the contract or in court.
Another highlight is Article 34, which enables the assessment of indirect costs related to depreciation and environmental impact of the object being bid, as well as factors linked to the product's life cycle, provided they are objectively estimable, which would justify the acquisition of more expensive goods, in theory, but with greater durability or that have a lower environmental impact in the production process, such as through recycling policies or the use of renewable energy. In short, it enables the use of the criterion of the best sustainable price to the detriment of the lowest price, since the former will result in a lower outlay for the Public Administration.
The Administration is an important consumer of products and services and this new sustainable bidding model highlights the legislator's concern with the environment in public works and advances this process of including sustainability in line with the economic order and efficiency. Therefore, it is essential that private parties pay attention, when participating in a bidding process, to the innovations conceived by the new law.
