Public notice for works without unenforceability criteria: the warning from Ruling 2357/2026

The problem does not start when the proposal arrives. It may arise during bidding planning, if the notice for work or engineering service does not explain how the global price, quantities and relevant unit prices will be examined.

This is the main warning of Ruling 2357/2026 of the First Chamber of the Federal Audit Court, judged on May 19, 2026. When analyzing a contract for building maintenance services, the TCU considered the lack of a clear and objective methodology to assess the unfeasibility of proposals, especially regarding the identification of relevant unit prices.

The understanding was later highlighted in edition no. 6 of the official newsletter No Radar — Public Contracts, from the Ministry of Defense. The released statement states that this omission violates article 59, paragraph 3, of Law 14,133/2021 and the principle of efficiency.

In practice, it is not enough to copy the rule according to which proposals lower than 75% of the Administration's budget are considered unfeasible to the notice. The modeling needs to establish how the examination will be carried out, which components of the spreadsheet will deserve specific analysis and how the bidder can demonstrate the viability of its offer.

What happened in the case analyzed by the TCU

Judgment 2357/2026 resulted from representation related to Electronic Auction 90046/GAP-RF/2024, conducted by the Recife Support Group to contract building maintenance services for the Air Force Command.

The controversy involved, among other points, the disqualification of proposals due to the unenforceability of certain items in the spreadsheet. According to the official summary of the judgment, some of these items represented small portions of the total value of the bidding groups.

The notice, however, had not defined which unit prices would be considered relevant. It was limited to providing, in general, for the application of the level of 75% of the budgeted amount. Given the gap, the team responsible for the event applied the verification in a linear and rigid manner to all items.

The rapporteur, minister Bruno Dantas, understood that it would not be appropriate to choose, only during the trial, which items should be treated as relevant. This subsequent choice would introduce subjectivity into a phase that must be conducted according to objective, impersonal and previously known criteria.

On the other hand, the indiscriminate application of the parameter to all items also produced an overly restrictive analysis. As recorded in the trial, the omission of the notice caused procedural rigidity, prolonged the trial phase and increased the transaction costs of the process.

Therefore, the main failure was located in the modeling of the notice, and not simply in the act of the agent who applied the rules available during the session.

The TCU judged the representation to be partially valid and informed the body of the lack of a clear and objective definition of the form of analysis of unenforceability, especially of relevant unit prices. In this specific case, it did not determine the annulment of the procedure, considering, among other elements, the essentiality of the services and the risk of loss resulting from the suspension of the contract.

What article 59 of Law 14,133/2021 requires

Article 59 of Law 14,133/2021 provides for the disqualification of proposals that present unfeasible prices or whose feasibility is not demonstrated when required by the Administration.

Its 2nd paragraph allows the Administration to carry out steps to verify feasibility or request the bidder to demonstrate it.

For engineering and architectural works and services, paragraph 3 establishes that the assessment must consider:

• the overall price;
• quantitative ones;
• unit prices considered relevant;
• the acceptability criteria for unit and global prices set out in the notice;
• the specificities of the corresponding market.

Paragraph 4 adds the parameter of 75% of the budgeted value for engineering works and services. Paragraph 5 determines additional guarantee when the winning proposal is less than 85% of the budget, corresponding to the difference between the budget and the proposed value, without prejudice to other applicable guarantees.

These provisions need to be interpreted in an integrated manner. The global percentage does not eliminate the need to examine the structure of the proposal, the quantities and the unitary items that effectively influence the economic and technical viability of the object.

Global price and unit prices fulfill different functions

The global price offers a first insight into the total value of the proposal compared to the Administration's budget. It is essential, but may not reveal in isolation how the bidder intends to execute each relevant portion of the object.

A globally attractive proposal may contain incompatible unit prices for certain critical services. It may also present very low values on items of small materiality that do not, in themselves, compromise full execution.

The challenge lies precisely in avoiding two extremes:

1. Look only at the total, ignoring relevant distortions in the composition of the proposal.
2. Apply a hard cut to all items, treating minimal impact components the same as essential, expensive or technically critical services.

Article 59, paragraph 3, seeks to remove these extremes by requiring a combined assessment. Judgment 2357/2026 adds that the form of this evaluation should not be improvised after the opening of the proposals.

How to identify relevant unit prices

The ruling does not offer a universal formula for selecting the relevant items. This absence is important: the Administration must create criteria consistent with the object, the execution regime, the budget and the risks of each contract.

Among the factors that can be technically evaluated during planning are:

• representation of the item in the global value;
• impact of the item on the critical path or physical-financial schedule;
• technical or operational relevance to the performance of the object;
• risk of compromising quality, safety or durability;
• price sensitivity to market fluctuations;
• concentration of materials, equipment or specialized labor;
• possibility of distortion between items, including undue advance payments;
• relevance of the item for measuring and balancing contractual execution.

These factors should not be automatically copied to any notice. The planning team needs to justify which of them are relevant and how they will be applied.

A possible methodology could combine, for example, a range of financial representation with the motivated inclusion of technically critical items. The essential thing is that the rule is objective, verifiable and disclosed before the dispute.

Does the 75% threshold authorize automatic disqualification?

A reading of paragraph 4 in isolation may suggest that any proposal lower than 75% of the budget should be eliminated immediately. TCU jurisprudence, however, has treated this parameter as a relative presumption, to be accompanied by the opportunity to demonstrate feasibility.

In previous decisions, the Court has already stated that the bidder must be able to prove the viability of the proposal before definitive disqualification. The Administration may request documents, information and justifications, analyzing them in a motivated manner.

This does not mean that every justification needs to be accepted. It means that the decision should not be based solely on an abstract conclusion or a subjective impression.

The notice needs to be clarified, with the support of technical and legal advice:

• in which situations diligence will be opened;
• which elements may be requested;
• how they will be evaluated;
• what period will be granted;
• what consequences will result from the lack of response or insufficient demonstration;
• how the decision will be recorded and motivated.

What can be requested in a due diligence

Adequate documentation varies depending on the object and the cause of the doubt. Depending on the case, the Administration may request elements that demonstrate the formation and sustainability of prices, such as:

• calculation memory;
• composition of unit costs;
• productivity considered;
• verifiable quotations for inputs or equipment;
• commercial conditions actually available;
• labor costs and applicable charges;
• logistics and supply strategy;
• comparable previous contracts;
• legitimate gains in scale or efficiency;
• justification for specific execution conditions;
• demonstration that the proposal covers the costs necessary to fulfill the obligations.

Diligence must not serve to allow a substantial reformulation of the offer or to grant privileged treatment to a competitor. Its purpose is to clarify and prove the proposal already presented, within the limits allowed by legislation and the notice.

Checklist to review the notice before publication

1. Forecast of the methodology in the notice

• Does the call instrument explain how the feasibility analysis will be carried out?
• Does the rule consider global price, quantities and relevant unit prices?
• Are the unitary and global acceptability criteria expressly defined?
• Is the methodology compatible with the execution regime and the target market?
• Do the preparatory phase documents record the technical justification of the solution adopted?

2. Identification of relevant items

• Does the notice indicate which items will be considered relevant or does it present an objective rule to identify them?
• Does the selection consider financial materiality and technical relevance?
• Have critical items with low percentage participation been assessed for risk?
• Does the choice prevent all spreadsheet components from being treated interchangeably?
• Can the methodology be reproduced by different evaluators with consistent results?

3. Due diligence procedure

• Does the notice inform when feasibility must be demonstrated?
• Does it establish which documents or categories of evidence may be requested?
• Do you provide a reasonable deadline and method of presenting the response?
• Does it avoid disproportionate or impossible-to-fulfill demands?
• Do you distinguish clarification from the proposal for undue alteration of its content?

4. Motivated decision

• Does the process record which price or component generated the question?
• Does the technical team compare the justification with the budget, the market and the characteristics of the object?
• Does the conclusion explain why the evidence was accepted or rejected?
• Do bidders in equivalent situations receive the same treatment?
• Does the decision allow for subsequent control by legal counsel, internal control and supervisory bodies?

Practical four-step framework

What the ruling does not allow us to conclude

Ruling 2357/2026 does not create a single clause model, does not define a universal percentage to select relevant unit prices and does not dispense with the analysis of the peculiarities of each contract.

It also does not allow us to conclude that:

• any unit price below a certain percentage is automatically unenforceable;
• items with small financial participation are always irrelevant;
• the global price is sufficient for any engineering work or service;
• diligence requires the Administration to accept any explanation presented;
• the lack of methodology necessarily results in the cancellation of any bid;
• criteria can be created or modified freely after proposals are opened.

The legal effect of a failure depends on the circumstances of the process, its severity, its impacts, the stage of contracting and the possible measures to protect the public interest.

The main step is to review the planning phase

The practical message of the judgment is that the analysis of unenforceability needs to be designed before the publication of the notice.

This task does not belong exclusively to the hiring agent. It requires integration between those responsible for the budget, basic project or terms of reference, engineering, risk management, preparation of the notice and legal analysis.

When receiving proposals, the judging team must find a methodology ready for application. Without this, you will be faced with equally problematic alternatives: improvising undisclosed criteria or applying generic rules with rigidity incompatible with the characteristics of the spreadsheet.

Ruling 2357/2026 shows that omission can increase trial time, administrative costs, litigation and insecurity for participants. Instead of being a formal detail, the unenforceability clause integrates the very architecture of an objective and efficient selection.

Save this checklist and submit the notice methodology to the technical team and competent legal advisor before publication. The review must consider the concrete object and the entirety of the ruling, without transforming its statement into an automatic solution for all bids.

Sources consulted

• Federal Audit Court — Ruling 2357/2026, First Chamber. Session of May 19, 2026. Primary source used for the context, foundations, result and particularities of the case.
• Federal Audit Court — Tenders and Contracts Report 528/2026. Official source used for the statement and summary of the judgment.
• Federal Audit Court - Jurisprudence Bulletin 586/2026. Official source used to confirm the statement and thematic indexing.
• Presidency of the Republic — Law 14,133, of April 1, 2021. Legal text used for articles 5 and 59, especially paragraphs 2 to 5.
• Ministry of Defense — On the Radar: Public Procurement, year V, nº 6. Official source used to confirm the editorial emphasis given to the ruling. Consultation on August 5, 2026.
• Federal Audit Court - jurisprudence on demonstrating feasibility. Used to contextualize diligence and the relative nature of the evidence of unenforceability.