The contracting of companies undergoing judicial reorganization by the Public Administration is a topic that sparks intense debate, situated at the intersection of two pillars of the legal system: on the one hand, the duty of efficiency and the pursuit of the most advantageous proposal, according to the bidding regime; on the other hand, the principle of preserving the company, enshrined in Article 47 of Law No. 11,101, of February 9, 2005 (Bankruptcy and Reorganization Law – LRF). This principle aims to "enable the overcoming of the debtor's economic and financial crisis," protecting the social function of the company and its economic activity.
The controversy arises from the apparent antinomy between the requirements for economic and financial qualification, such as the "good financial standing of the bidder" (as per article 69 of Law No. 14.133/2021), and the very nature of judicial reorganization. Historically, article 31, item II, of Law No. 8.666/1993 was interpreted by many as an impediment, as it required a "certificate of no bankruptcy or composition with creditors".
However, the Superior Court of Justice (STJ) has established a precedent that the status of being under judicial reorganization, in itself, cannot disqualify a company from participating in bidding processes. In landmark decisions, such as Special Appeal No. 1,826,299/CE, the Superior Court established the principle that the requirement for a negative certificate of judicial reorganization should be relaxed, as such a prohibition would create an impediment not foreseen by law, violating the principle of strict legality and broad competitiveness. Along the same lines, the Federal Court of Accounts (TCU), through Ruling 1,201/2020-Plenary, admitted the participation of companies undergoing judicial reorganization, conditioning it on the presentation of a certificate from the competent court attesting to their economic and financial capacity to assume the obligations of the contract.
Thus, case law has consolidated the thesis that the viability of contracting should not be presumed or automatically discarded, but rather conditioned on a careful analysis of a three-pronged support that, together, mitigates the risks for the Administration and demonstrates the probability of contractual fulfillment: the support of the bankruptcy court, proof of tax compliance, and unequivocal demonstration of operational capacity.
The practical application of this understanding is vast and can be observed in high-profile cases. The most emblematic example is that of Grupo Oi SA. During its long judicial reorganization process, the company not only maintained its substantial telecommunications service contracts with numerous public bodies, but also participated in new bidding processes. The continuity of these contracts was crucial for the viability of the reorganization plan, while also ensuring the maintenance of an essential service for the Administration.
Similarly, several infrastructure construction companies, many affected by Operation Lava Jato, resorted to judicial reorganization. Even in this scenario, they continued to carry out public works and participate in new bidding processes, obtaining judicial support to guarantee their right to be contracted, provided that the technical and operational capacity to execute the projects was proven.
These specific cases demonstrate that the decision to contract with a company undergoing judicial reorganization, when well-founded, proves to be a two-way street: for the company, it represents a vital source of revenue; for the Public Authorities, it ensures the continuity of services and stimulates the economy.
For this type of contracting to be secure, the first pillar is the support of the bankruptcy court. Approval of the plan by creditors (article 58 of the Bankruptcy Law) and the issuance of a certificate of eligibility by the judge act as a seal of approval. The second pillar is proof of tax compliance, demonstrated not by payment, but by settling debts through special installment plans (such as those under Law No. 13.043/2014) and the presentation of a Positive Certificate with Negative Effects (CPD-EN).
The third and most pragmatic pillar is the unequivocal demonstration of operational capacity. The company must prove that it possesses the material and human resources to execute the project, and the Administration has the duty to conduct due diligence to assess this capacity, as permitted by Article 64 of Law No. 14.133/2021.
It can be concluded, therefore, that contracting with a company undergoing judicial reorganization is legally possible and, as the examples demonstrate, a reality in the market. The central issue for the public manager shifts from simple legal permission to a careful risk management. The decision requires a diligent approach, replacing summary prohibition with an analysis based on judicial approval, fiscal regularity and, crucially, proven execution capacity. By acting in this way, the Public Administration responsibly balances the promotion of the economy and the indispensable protection of the public interest.