By: Leonardo Neri

The Federal Constitution provides that the direct and indirect public administration of any of the Powers of the Union, the States, the Federal District and the Municipalities shall comply with the principles of legality, impartiality, morality, publicity and efficiency.

Thus, the acts of the Public Administration must be guided by good faith, probity and ethics, as a result of the principle of morality and, when seeking the supremacy of the public interest over private interest, it must act without preference, ensuring administrative probity, that is, the public servant, those who provide services to the State, including Indirect Public Administration, having an employment relationship and paid by public funds, must, in order to preserve the good reputation of the administration, act in accordance with ethical and moral principles.

For Celso Antonio Bandeira de Mello, administrative probity constitutes a fundamental basic principle of the bidding process. Therefore, the bidding law has as one of the guiding principles of the public procurement system, good faith on the part of public administrators, so that the choice is geared towards the public interest and the contract is made based on the most advantageous proposal, since, otherwise, the purpose of the bidding process is rendered useless.

However, bidding becomes unnecessary in some cases, as provided for by law – article 75 of law 14.133/2021 – as well as in cases of emergency and public calamity. For this hypothesis, Provisional Measure 1.047/2021 was recently issued, which provides for exceptional measures for the acquisition of goods and the contracting of services, including engineering, and supplies intended to combat the Covid-19 pandemic, due to the existence of a risk to people's safety and the occurrence of a public health emergency of national importance.

A notorious case that does not require a bidding process concerns the purchase of vaccines by the Federal Government and, in this case, there is evidence that there was a search for a more expensive vaccine by political agents, who are public agents - those who exercise, even temporarily or without remuneration, by election, appointment, designation, hiring or any form of investiture or link, mandate, position, employment or public function.

Therefore, the Parliamentary Commission of Inquiry, regulated by the Federal Constitution – article 58 of the CF and special laws – has the purpose of investigating a certain and determined fact, a role played by the Legislative Branch (article 70, caput of the CF), to determine whether the statements given by the witnesses are true and, thus, finalize the procedure and prepare a report, which will be forwarded to the competent authority, which will promote the accountability of the offenders, if applicable.

In the aforementioned hypothesis, there is a breach of the principle of impartiality, since the administrative agents would benefit from the surplus amounts, as well as breaking with the principles of morality by not acting in accordance with good faith when acquiring inputs.

And the Federal Constitution provides that political-administrative infractions will be investigated as a crime of responsibility for holders of high public positions, subject to the impeachment process, in the case of heads of the Executive Branch – Federal, State, Municipal or District, as well as Ministers of State (Law 1,079/1,950).

The law that defines and regulates crimes of responsibility, Law 1,079/1,950, provides, in accordance with the Federal Constitution, that crimes against administrative probity are not making effective the responsibility of subordinates, when manifested in functional crimes or in the practice of acts contrary to the Constitution; violating legal norms and acting in a manner incompatible with the dignity, honor and decorum of the position.

Public administration should be guided by the principle of strict legality, in which it should be restricted to the law and do only what the law allows. Celso Antonio Bandeira de Mello says that “the principle of legality is the natural antidote to monocratic or oligarchic power, as it is rooted in the idea of popular sovereignty and the exaltation of citizenship.”

Therefore, acts contrary to the principles governing Public Administration must be investigated and the agents who committed such acts must be punished. Administrative probity is necessary for the democratic rule of law and acts contrary to this rule threaten the solidification of the democratic regime and today's society demands compliance with ethical and moral standards in the conduct of "public affairs", and unilateral government conduct cannot stand out.