Art. 64 of Law 14,133/2021 does not authorize the bidder to obtain, after the opening of the tender, a qualification condition that he did not have at the due time. But the rule also does not mean that every document presented subsequently must be rejected. The decisive point is another: the diligence can receive a subsequent document when it serves to prove a material condition that already existed at the opening of the public session.
This distinction gained a particularly clear application in Judgment 1788/2026-TCU-Plenário, judged on July 8, 2026. In this case, the Court analyzed the disqualification of a company that had not initially presented the balance sheet for 2024. The balance sheet was registered with the Commercial Board only after the opening of the session. Even so, the TCU understood that the later registration date, in isolation, did not transform the document into an attempt to create a new condition.
What does art. 64 prohibits and what diligence can remedy
The legal rule starts from a prohibition: after delivery of the qualification documentation, it is not permitted to simply replace or add documents. The art itself. 64, however, makes exceptions in due diligence. One of them allows you to supplement information necessary for the investigation of facts existing at the time of the opening of the contest; another allows you to update documents whose validity has expired after receiving proposals. § 1 also allows the correction of errors or flaws that do not alter the substance of the documents or their legal validity, through a reasoned decision that is accessible to the participants.
A merely literal reading of the expression “documents already presented” could lead to the conclusion that a completely absent document could never be included later in the process. TCU jurisprudence, however, makes a distinction between the moment in which the qualification condition exists and the moment in which the document proving it is presented.
In Ruling 1211/2021-TCU-Plenário, a precedent taken up in the 2026 judgment, the Court had already stated that the seal does not cover an absent document that proves a condition met by the bidder when he presented his proposal, but which was no longer included due to error or mistake. Ruling 2443/2021-TCU-Plenary adopted similar guidance for documents presented in due diligence intended to certify pre-existing qualification conditions.
The practical consequence is that new document and new condition are not the same thing.
Proving later does not mean fulfilling later
This is the most important test for those conducting hiring.
If the requirement was only met after the opening of the session, diligence cannot be used to retroact this new situation. In this scenario, there is no simple late proof: there was a material change in the bidder's condition.
The situation is different when the relevant fact already existed at the required time and the subsequent document only allows it to be demonstrated. In this case, the admission of evidence does not create legal, technical, fiscal or economic-financial capacity after the deadline. It seeks to verify a previous reality.
The TCU itself summarized this line in Ruling 1788/2026 when considering that the prohibition of art. 64 does not reach a document presented in due diligence intended to demonstrate a pre-existing qualification condition at the opening of the session. The Court expressly highlighted the balance sheet as an example of this situation.
The balance recorded after the session in Judgment 1788/2026
The specific case helps to understand where the border is.
Electronic Auction 90006/2026, promoted by the Regional Electoral Court of Rio Grande do Sul, had a public session on April 17, 2026. The company Norte e Sul Log Transportes Ltda. had not presented, upon qualification, the balance sheet for the year 2024. During due diligence, he provided the document, which was formalized and registered with the Commercial Board on April 22, 2026, therefore after the opening of the tender.
The balance sheet was submitted to the accounting and financial technical area of TRE-RS, which concluded that the economic-financial requirements of the notice were met. Even so, the auctioneer did not accept it for qualification because registration with the Board of Trade took place after the public session.
For TCU, this interpretation was excessively restrictive. The Court considered that the balance sheet has a declaratory nature of the company's economic and financial situation in the past period. Thus, the fact that the formal registration occurred after the opening of the tender did not mean, in itself, that the economic-financial situation portrayed had also arisen later.
This caveat is important. The ruling did not establish a rule according to which any balance prepared or registered after the deadline must be automatically accepted. The issue continues to be evidentiary: the Administration needs to verify whether the document effectively proves a situation that already existed at the legally relevant time and whether the other legal and public notice requirements were met.
The TCU did not declare the company automatically qualified
Another precaution when reading the precedent is to observe what the Plenary actually determined.
The TCU considered the representation partially valid, ordered TRE-RS to annul the decision that had disqualified the company and ordered the return of the auction to the qualification phase. The documentation should then be re-evaluated according to the interpretation of art. 64 adopted by the Court and observing other legal requirements and the notice.
Therefore, the consequence of the sanitation is not to waive the qualification requirement nor to assume that it has been met. Diligence allows the Administration to examine adequate proof of the pre-existing condition. After that, it is still necessary to check whether the documentation actually demonstrates compliance with the requirement.
This difference is of direct interest to governance. Moderate formalism does not eliminate the link to the notice, equality or objective judgment. It prevents a documentary failure from being treated as if it were necessarily the absence of the required material condition.
How to apply the distinction in due diligence
When evaluating the further presentation of a document, the process instruction may follow an objective sequence:
- Identify the qualification requirement under discussion. It is necessary to know what material conditions the notice and the law required.
- Define the moment in which this condition should exist. In the context of art. 64, the investigation must consider the facts existing at the time of the opening of the contest and the particularities of the applicable requirement.
- Check if the condition was already met at that time. This is the divide between sanitation and material innovation.
- Examine the function of the document presented afterwards. If it merely demonstrates a previous reality, there may be room for diligence; If a condition is registered that was only born later, the situation is different.
- Base the decision on the process. Sanitation should not occur informally or selectively. Law 14,133 requires justification for correcting errors or flaws in the analysis of qualification, and jurisprudence relates diligence to the preservation of equality and public interest.
The test can be summarized in one question: is the document presented now just proving something that was already true at the opening of the session or is it allowing the bidder to now fulfill a requirement that it did not meet before?
In the first case, Ruling 1788/2026 reinforces the possibility of due diligence. In the second, the subsequent presentation ceases to be mere sanitation and starts to change the qualification condition itself.
For managers and contracting agents, this separation reduces two opposing risks: excluding a potentially advantageous proposal due to excessive documentary formalism or, in the opposite sense, using diligence to grant additional time for a bidder to acquire a condition that the others already needed to possess at the appropriate time.
The safest way is to record in the process what the required condition was, what elements demonstrate that it existed at the appropriate time and why the subsequent document only proves it, without modifying it. In situations with relevant legal doubt, the application to the specific case must be submitted to competent legal advice.
