In electronic auctions, it is not enough for the diligence to have a legitimate purpose. The channel used to perform it also includes the guarantees of the procedure.
This was the point highlighted by the Federal Audit Court in Ruling 1.742/2026-Plenary, judged on July 1, 2026. The TCU considered the use of electronic mail to process bidders to be irregular when email replaces the proper tool available on the Federal Government's Purchasing Portal. The Court related the practice to damage to publicity, efficiency, transparency and legal security provided for in art. 5th of Law 14,133/2021.
The decision deserves attention because it shifts the discussion away from a simple question — “did the supplier receive the message?” — to another more important one from a governance point of view: was the act carried out in the institutional environment that allows monitoring, reconstruction and control of the history of the event?
What happened in the auction analyzed by TCU
The process involved Electronic Auction 90.006/2025, conducted by the Hospital Federal dos Servidores do Estado, for contracting engineering services related to the preparation of projects for the renovation and readjustment of the surgical center.
The tender had an estimated value of approximately R$ 952 thousand and was awarded to the company that occupied the 35th initial position, after the disqualification of 34 bidders. The representation taken to the TCU, however, did not just deal with email communication. Different flaws in the conduct of the bidding were examined, including technical qualification criteria, motivation for decisions, territorial requirements and procedures adopted during the trial.
This distinction is important.
Upon deciding the merits, the TCU determined the cancellation of the auction and established measures for a possible new contract. In relation specifically to the use of e-mail for investigations, the Court informed the hospital of the irregularity so that internal measures could be adopted to prevent new occurrences.
Therefore, it is not correct to summarize the case by saying that the auction was canceled simply because there was an email inquiry. The use of the parallel channel was one of the improprieties found in a process with other relevant problems.
Why replacing the system with email was considered irregular
The TCU's reasoning helps to understand that the discussion is not merely technological.
According to the Court, in electronic bidding procedures, using the institutional means provided for carrying out the acts helps to preserve publicity, traceability, awareness of participants and the integrity of the contest's history. When relevant communication migrates to a parallel channel, these characteristics can be weakened, making subsequent control even more difficult.
An email can leave proof that two parties exchanged messages. This, however, does not automatically produce the same record as an act carried out within the platform on which the bidding is being conducted.
In the official system, diligence can integrate the history of that procedure, maintain messages and documents linked to the event and allow the sequence of decisions to be reconstructed in a more organized way.
This point became even more relevant after Compras.gov.br itself started to offer a specific due diligence functionality.
Compras.gov.br already has its own tool for due diligence
On April 4, 2025, the Purchasing Portal released the new Diligence tab on Compras.gov.br, available to public agents and suppliers.
The functionality was presented as an instrument related to art. 64 of Law 14,133/2021 and allows the agent to open the due diligence directly in the system, while the supplier responds and monitors the procedure within the platform itself.
The change solves precisely a problem that existed when these measures were carried out externally via email or other systems: the fragmentation of the administrative record.
This context is relevant for interpreting Judgment 1,742/2026. In the case examined, the official tool already existed. Even so, the agency used electronic mail to carry out investigations.
During the process, the Hospital Federal dos Servidores do Estado itself recognized the inadequacy of the practice and informed the TCU that it would start requesting due diligence regarding the system's functionality, ceasing to request adjustments by email.
Law 14,133 allows diligence, but requires control over the act
Art. 64 of Law 14,133/2021 provides for cases in which the Administration may resort to due diligence after delivery of the qualification documents.
These include supplementing information on documents already presented, when necessary to verify facts existing at the time of the opening of the contest, and updating documents whose validity has expired after receipt of proposals.
Paragraph 1 of the same article allows errors or errors that do not alter the substance and legal validity of the documents to be remedied, through a reasoned decision, registered and accessible to interested parties.
In other words, diligence is not the problem. It is an instrument provided for by legislation.
The point discussed by the TCU was the way chosen to carry out this act within an electronic bidding process when there is a specific institutional environment to do so.
IN SEGES/ME 73/2022 follows the same logic of concentration of acts in the system. For bids covered by the standard, the session takes place through the Federal Government Purchasing System; the art. 20, § 2, provides a specific field for exchanging messages between the contracting agent and the bidders, prohibiting other forms of communication. In the qualification, art. 39 also determines, in the hypotheses it regulates, the sending of documents through the system.
When an action requires the suspension of the session for sanitation, art. 43 of the same IN also determines that the resumption must be notified in advance in the system, at least 24 hours in advance, and recorded in the minutes.
The normative design, therefore, does not treat the electronic system only as a place where bids are presented. It also functions as documentation and procedure control infrastructure.
The risk of the “parallel channel”
From a governance perspective, carrying out due diligence outside the platform can create two different histories for a single hire: one in the public system and the other in the administrative unit's email box.
This makes basic auditing questions difficult. Who received the request? When did you receive it? What deadline was granted? What document was sent? What was the answer? Did this answer interfere with the qualification or the trial? Where is the motivation for the resulting decision recorded?
When messages, files and justifications remain in the system's institutional flow, the answer to these questions tends to be linked to the procedure itself.
Therefore, traceability should not be treated as additional bureaucracy. It is part of the ability to later demonstrate that participants received appropriate treatment and that the administrative decision was based on verifiable facts.
What changes in practice for hiring agents
Ruling 1,742/2026 reinforces some operational precautions for bodies that use Compras.gov.br:
- carry out due diligence on the system's own functionality, when it is available for that procedure and phase;
- record in the official environment the reason for the diligence, the requests, documents received and the analysis carried out;
- observe the deadlines set out in the notice and applicable regulations, avoiding both insufficient deadlines and different treatment between bidders;
- substantiate the result of the due diligence and preserve the relationship between what was requested, what was presented and the decision taken;
- in the event of effective system unavailability, document the problem and follow official contingency guidelines, instead of automatically transforming email into a substitute for the institutional tool.
This last precaution was given a recent example. After an instability in Compras.gov.br on July 13, 2026, the Ministry of Management advised that, in cases where suppliers had been prevented from carrying out judgment or qualification acts due to unavailability, the bodies should examine the situation and guarantee a new practice of the affected acts.
The guidance shows the difference between treating an unavailability formally and simply removing a relevant step from the official environment.
The ruling does not prohibit any and all use of email
It is also important not to expand the precedent beyond what it actually decided.
The TCU's statement is specific: it considers it irregular to use electronic mail to carry out inquiries to bidders instead of the Federal Government's Purchasing Portal's own tool.
This does not amount to a blanket statement that a hiring department may never use email for any administrative communication.
The relevant legal issue is different: when a certain act is part of the electronic bidding procedure and there is a specific institutional means for carrying it out, transferring this act to a parallel channel may compromise the guarantees associated with official registration.
This reading avoids two distortions. The first would be to minimize the ruling as a simple technological preference. The second would be to transform it into an absolute prohibition that the statement itself did not formulate.
Governance is also in the choice of channel
The case offers an practical lesson that goes beyond due diligence.
In electronic processes, the platform chosen to perform a certain act is not just a convenience tool. It can be part of the mechanism that ensures publicity, documentation, control and legal security.
For contracting units that use Compras.gov.br, the most prudent measure after Ruling 1,742/2026 is to review internal routines so that due diligence is not treated as side conversations with suppliers.
If the information may influence the qualification, judging or other decision of the event, its registration must also accompany the process.
Contracting governance begins before the contract is signed. And, as this precedent shows, it can depend on something seemingly simple: asking the right question, through the right channel, leaving the history in the right place.
