The problem may begin with the wording of the notice, not with the bid presented by the bidder.
In Ruling 2357/2026, the First Chamber of the Federal Audit Court considered the lack of a clear and objective definition of how prices would be analyzed to assess unenforceability, especially regarding relevant unit prices, as a planning failure. For the TCU, the omission contradicted art. 59, § 3, of Law 14,133/2021 and produced rigidity, delay in judgment and unnecessary transaction costs.
The practical consequence is direct: inserting in the notice only the percentage of 75% provided for in § 4 of art. 59 does not solve all modeling. Before publication, the team needs to connect the reference budget, relevance methodology, acceptability criteria, due diligence procedure and how to motivate the decision.
What Judgment 2357/2026 actually decided
Judgment 2357/2026-TCU-First Chamber was judged in the session of May 19, 2026. The deliberation was published in the TCU Bulletin on May 27, and the understanding subsequently appeared in the Tenders and Contracts Newsletter 528, dated June 16, 2026. Therefore, August 5, 2026 is not the date of the judgment or the official localized publication.
The case involved an electronic auction for building maintenance services. The representative company had been disqualified from groups in which certain items considered unenforceable corresponded to only 0.109% and 0.135% of the respective total values. The rapporteur understood that the auctioneer had strictly applied the rules of the notice and, therefore, did not attribute the main failure to the judgment. The problem was in the modeling that preceded the dispute.
The representation was considered partially valid. The TCU informed the agency to prevent new occurrences, but did not cancel the procedure. This solution resulted from the circumstances of that process and should not be interpreted as authorization to repeat the omission in new notices.
The decision also censured the requirement that supplier quotations presented to prove feasibility were valid for 120 days. The deadline set out in the notice covered the bidder's proposal to the Administration, and not, automatically, the budgets issued by third parties. Extending the requirement created a criterion not foreseen in the call for proposals.
Three rules that should not be confused
Art. 59 of Law 14,133/2021 brings together related but distinct commands.
Paragraph 2 allows the Administration to carry out steps to assess feasibility or require the bidder to demonstrate it. § 3 determines that, in engineering and architectural works and services, the global price, quantities and relevant unit prices are considered, according to unitary and global acceptability criteria set out in the notice. § 4 establishes a level of 75% of the administrative budget for proposals for works and engineering services.
In selected TCU jurisprudence, the level of § 4 generates a relative presumption of unenforceability. This means that a proposal lower than 75% must not be automatically eliminated without the bidder having the opportunity to demonstrate its viability, in accordance with § 2. This understanding appears, among others, in Plenary Decisions 465/2024, 2,378/2024 and 214/2025.
Paragraph 3 adds another layer: even when the overall proposal is not below the 75% trigger, the notice needs to indicate how the relevant quantities and unit prices will be examined. Judgment 2,190/2024 had already determined that the calling instrument should clarify whether the acceptability criteria would only apply to the global price or also to unit prices.
Chart before and after review
| Point of the draft | Insufficient writing | Revised wording |
|---|---|---|
| Methodology | “Enforceability will be analyzed in accordance with the law.” | Describes the steps, parameters and documents used in the analysis. |
| Relevant unit prices | Does not identify items or explain how they will be chosen. | Presents objective criteria and attachment with the selected items. |
| 75% threshold | Provides automatic disqualification. | Treats the level as a trigger for analysis and demonstration opportunity. |
| Low materiality items | Applies the same consequence to any single item. | Distinguishes financial, technical, operational and risk relevance. |
| Diligence | Generally requests that the bidder “check the prices”. | Defines purpose, deadline, possible documents and form of evaluation. |
| Evidence presented | Creates demands during the trial. | Uses already foreseen criteria, without imposing validity or new formality. |
| Motivation | Records only “unfeasible proposal”. | Relates evidence, diligence, evidence, analysis and conclusion. |
How to set relevant unit prices
Ruling 2357/2026 did not establish a single formula or a mandatory percentage for all notices. He demanded that the Administration make the choice in a clear, objective and compatible manner with the object.
A defensible internal methodology can combine three dimensions.
Financial relevance
The team can order the items by total value, obtained by multiplying the quantity by the reference unit price, and construct an ABC curve. The analysis of items that, cumulatively, account for approximately 80% of the budget is used in construction inspections by the TCU and in specific Union transfer standards. This percentage works as a possible technical reference, not as a general rule created by art. 59.
The Administration must justify the adopted range. Depending on the object, focusing the analysis only on items that reach 80% of the value may exclude components with low financial participation, but essential to safety, operation or schedule.
Technical and operational relevance
After the financial classification, the team must check whether there are items that deserve inclusion due to technical criticality, even if they have less weight in the budget. They can participate in this evaluation, depending on the concrete characteristics of the object:
- services linked to structural or operational safety;
- materials without simple replacement during execution;
- items located on the critical path of the schedule;
- equipment with low regional availability;
- inputs subject to special transport, storage or logistics;
- services whose artificial price reduction may compromise quality, productivity or performance;
- items with a high risk of quantitative change or impact on additives.
These factors should not be copied automatically. Each inclusion must be related to the projects, specifications, risk matrix and the contracting market.
Traceability
The result must be transformed into a verifiable document. For each relevant unit price, record at least:
- item code and description;
- unit and quantitative;
- reference unit price;
- total value and percentage share;
- accumulated position on the ABC curve, when used;
- financial, technical or operational reason for selection;
- price source and reference date;
- responsible for analysis.
The final list must integrate or accompany the notice. A spreadsheet kept only in the technical area, without reflection in the rules of the call instrument, does not eliminate the omission pointed out by the TCU.
12-point checklist for reviewing the draft
1. Confirm the framing of the object
Record whether the contract involves construction work, engineering services or architectural services and identify the execution regime. The methodology must reflect the way in which risks are measured, paid and distributed.
2. Validate the reference budget
Check quantities, compositions, sources, base dates, BDI, social charges and local conditions. The estimated value must be compatible with the market, with the quantities and with the peculiarities of the place of execution.
3. Define the universe of unit prices
Indicate which spreadsheet the items submitted for analysis will be extracted from: synthetic budget, service spreadsheet, compositions or other document compatible with the adopted regime.
4. Choose relevance methodology
Declare whether ABC curve, accumulated percentage, classification by bands, materiality matrix or combination of methods will be used. Avoid open expressions such as “most relevant items”, without selection criteria.
5. Add critical items not captured by value
Do a second analysis for security, performance, logistics, schedule and contractual risk. Justify each additional inclusion.
6. Publish the list of relevant items
Attach to the notice a table with code, description, quantity, reference value, weight in the budget and reason for selection. If the list depends on confidential information, the solution needs to be legally evaluated so as not to prevent the bidder from knowing the rules of the trial.
7. Separate global and unitary acceptability
Explain whether unit limits apply to all items or only those classified as relevant. Also define how differences resulting from the judgment criteria for lower price or greater discount will be treated. The notice must make this scope explicit.
8. Differentiate overpricing, unfeasibility and spreadsheet error
Overpricing, unenforceable pricing and formal inconsistency are not the same occurrence. The draft must indicate which treatment will be applied to each situation, including when it is possible to correct the spreadsheet without modifying the substance of the proposal.
9. Describe the trigger and flow of diligence
Predict that relevant evidence, including the level of art. 59, § 4, will lead to the opportunity to demonstrate feasibility before the final decision. Record who takes action, what is the deadline, how communication will take place and which points should be clarified.
10. Anticipate admissible categories of evidence
Depending on the evidence, cost breakdowns, similar contracts, invoices, quotations, commercial conditions, productivity, equipment availability, logistics costs, inventories, tax regimes, charges and justifications of economic opportunity may be requested.
The list must guide the evidence, and not create a closed list incapable of recognizing other suitable evidence. Nor should any validity period or formality that is not supported by the notice and the purpose of the analysis be imposed during due diligence.
11. Create a decision matrix
For each clue, record:
- item or price questioned;
- reason for diligence;
- requested documents;
- bidder's response;
- evidence accepted and rejected;
- comparison with the reference budget;
- technical conclusion;
- basis of the decision.
This matrix reduces generic responses and facilitates later control.
12. Cross-check before publishing
Submit the final version to the engineering, contracting, budget and legal advisory areas. Check whether the notice, the basic project or term of reference, the budget, the proposal spreadsheet and the annexes use the same concepts and limits.
How to conduct due diligence without turning it into a new qualification phase
The diligence must investigate the identified evidence. It should not function as an opportunity for the Administration to invent criteria, demand documents unrelated to the question or transfer the correction of an incomplete modeling to the bidder.
The request must begin with an objective question. For example: what is the composition that allows a certain item to be executed for the price offered? From there, documents proportional to the question can be requested, without requiring the entire cost structure when the question is focused on a specific input or service.
The analysis should also not be limited to comparing the proposal with the administrative budget. Differences may arise from existing stock, contract with supplier, own equipment, proven productivity, specific logistics, commercial strategy or other legitimate economic condition. It is up to the bidder to demonstrate the situation and the Administration to evaluate the consistency, timeliness and relationship of the evidence with the intended execution.
When the evidence is insufficient, the decision must indicate why the documents did not eliminate the risk. Expressions such as “did not prove feasibility” or “very low price” do not, alone, demonstrate the reasoning carried out.
Minimal documentary trail
| Document | Expected content | Registration in the process |
| Reference budget | Quantitative, compositions, sources, base date, BDI and charges | Signed spreadsheets and calculation memory |
| Relevance matrix | ABC curve, technical criteria and selected items | Technical note from the planning team |
| Justification of the methodology | Reason for percentages, ranges and exceptions adopted | ETP, basic project or specific document |
| Attachment to the notice | List of relevant items and judgment criteria | Published version of the call instrument |
| Diligence | Indication, request, deadline, response and documents | Communication in the system and attached parts |
| Response analysis | Individualized technical assessment | Note or technical opinion |
| Decision | Motivated conclusion and legal basis | Minute, order or decision of the competent agent |
| Version control | Changes made during review | Draft history and final approval |
The final test of the draft
Before publishing, try to respond only with the process documents:
- What unit prices will be considered relevant?
- Why were these items chosen?
- Does the criteria apply to global price, unit price or both?
- What generates due diligence?
- How can the bidder demonstrate the feasibility of the proposal?
- Who will analyze the response and with what parameters?
- Where will the motivation be recorded?
If any answer depends on a choice that will only be made during the trial, the draft still contains room for subjectivity.
Copy the checklist, apply it to the consolidated version and submit the draft to legal review and the technical team responsible for the budget. The objective is not to fill the notice with generic clauses, but to allow any participant to know in advance how the Administration will analyze the proposal.
