For engineering consultancy services covered by AGU Normative Guidance 107/2026, the answer became objective within the federal legal sphere reached by the guidance: the pregão modality does not apply. The guidance classifies the activities in article 6, XVIII, items "a", "d" and "h" of Law 14.133/2021 as specialized technical services of a predominantly intellectual nature, requires the concorrência competitive-bidding modality when there is a tender, and preserves the situations in which direct contracting due to unenforceability of competition may apply. The change matters because it narrows the room for the former case-by-case analysis of whether certain design, supervision or inspection services could be treated as common engineering services.
This does not mean, however, that every engineering consultancy contract must automatically use technical merit and price, nor that the Normative Guidance erased the case law of the Federal Court of Accounts (TCU). Procurement modality and award criterion are separate choices. It is also necessary to distinguish the binding effect of the guidance within the federal legal structure from its interpretive value for states and municipalities.
The short answer: what AGU Normative Guidance 107/2026 determines
AGU Normative Guidance 107/2026 was published in June 2026 and consolidated four commands. The first concerns classification: the engineering consultancy services listed in article 6, XVIII, items "a", "d" and "h" of Law 14.133/2021 must be treated as specialized technical services of a predominantly intellectual nature. For this group, the technical area may not reclassify the subject matter as a common engineering service merely because it can describe it through detailed specifications.
The second command concerns the procurement modality. Because the sole paragraph of article 29 of Law 14.133/2021 excludes pregão for specialized technical services of a predominantly intellectual nature, the AGU concluded that the procurement must proceed through concorrência, unless a valid situation of direct contracting due to unenforceability of competition is established.
The third command concerns the award criterion. The guidance indicates technical merit and price as the general rule, but allows lowest price when evaluating and weighting the technical quality of
proposals is not relevant to the result sought by the Administration. Therefore, concorrência and technical merit and price are not synonyms.
The fourth command creates an additional restriction tied to value. When the contract exceeds the threshold in article 37, § 2, of Law 14.133/2021, lowest price is no longer available: the tender must use best technical proposal or technical merit and price, and in the latter case the technical proposal must receive 70% of the weighting. For 2026, Decree 12.807/2025 updated this threshold to R$ 392,952.63.
Which engineering services fall within the scope of the guidance
The Normative Guidance does not use the expression "engineering consultancy" in an open-ended way. It expressly points to three groups in article 6, XVIII, of Law 14.133/2021. Item "a" covers technical studies, planning, basic designs and executive designs. Item "d" covers inspection, supervision and management of works and services. Item "h" includes quality and technological controls, analyses, tests and field and laboratory trials, instrumentation and monitoring of specific parameters of works and the environment, as well as other engineering services that fit the statutory definition.
This scope matters because it avoids two bad shortcuts. The first is concluding that any contract involving an engineer is automatically an intellectual service under Guidance 107. The second is taking the opposite route and calling a design, supervision or inspection activity covered by the listed items "common" merely because the Administration produced a detailed terms of reference.
In practice, the description of the subject matter remains decisive. The file must show what work is being contracted and under which statutory category it falls. The label used in the tender notice or preliminary technical study does not replace that analysis. A subject matter generically called "technical support", for example, may combine portions of different legal natures and require a more careful reading of the scope.
What changed compared with the understanding previously used
Before Guidance 107, there was more institutional room for case-specific classification. AGU Normative Guidance 54/2014 itself provides, as a general rule, that the technical officer or technical unit is responsible for declaring whether the subject matter is common for purposes of pregão and for defining whether it is a work or an engineering service, while the legal unit analyzes whether the selected procurement modality is legally framed correctly.
Guidance 107 operates as a specific rule within that setting. For the engineering consultancy services in items "a", "d" and "h", it removes precisely the possibility for the technical area to conclude that the service is common. In other words, the general rule of technical classification remains useful for other subject matters, but it should not be used to circumvent the classification fixed by the new guidance for this group.
The contrast also appears when looking at TCU case law. Under the previous legislation, Plenary Decision 713/2019 held that engineering consultancy services could be common when their performance and quality standards were objectively defined through usual market specifications. In that case, involving highway supervision, the Court even ordered the use of pregão. It is an important precedent for understanding where the administrative practice came from, but it was formed under Law 10.520/2002 and should not be mechanically transplanted to Law 14.133/2021.
The tension became more current with TCU Decision 847/2025, already under the new Public Procurement Law. The case concerned an electronic pregão conducted by the Regional Labor Court of the 18th Region (TRT-18) for a price-registration system covering services that included
preparation and approval of basic and executive designs, descriptive documents, specifications, planning and cost spreadsheets. The TCU found the complaint unfounded and accepted, in that concrete case, the classification as a common engineering service.
Why TCU Decision 847/2025 is the main point of tension
Decision 847/2025 is especially relevant because it is not merely a remnant of repealed legislation. The challenged pregão was governed by Law 14.133/2021. The TCU considered that TRT-18 had provided a detailed scope capable of standardizing execution and that the technical area had classified the services as having low technical and operational complexity, with no need for highly specialized solutions or deeper subjective assessment during performance.
Based on those characteristics, the Court understood that the services in that pregão were not predominantly intellectual and could be classified as common engineering services. The decision therefore preserved a concrete-case logic: even for activities close to design work, simplicity and standardization could justify pregão.
Guidance 107 adopts a different construction for federal legal advisory work. By stating that the services in items "a", "d" and "h" are, by statutory definition, predominantly intellectual, it prevents the simplicity of the specific case from being used to convert them into common engineering services. This is the real core of the 2026 change.
The AGU Normative Guidance does not revoke a TCU decision
The divergence must be described precisely. The AGU and the TCU exercise different institutional functions. An AGU Normative Guidance does not revoke a decision of the Federal Court of Accounts, just as a TCU decision does not automatically make a guidance that is binding within the AGU legal structure cease to exist.
The publication text of Guidance 107 states that it is mandatory for the legal bodies listed in articles 2 and 17 of Complementary Law 73/1993. This universe includes the bodies of the Office of the Attorney General of the Union and the legal bodies of federal autarchies and public foundations linked to the institution. Thus, in federal proceedings submitted to that legal advisory structure, the legal analysis must follow the interpretation standardized by the AGU.
For a federal manager, this makes it risky to defend a pregão for design, inspection, supervision, management or another activity directly falling within the cited items based only on earlier TCU precedents. The proceeding would face a specific and later federal legal guidance created precisely to resolve this interpretive controversy.
This also does not justify saying that the TCU automatically abandoned the reasoning of Decision 847/2025. The prudent course is to recognize the institutional coexistence of the two references and monitor later decisions that expressly address the new Guidance. Until there is greater convergence, the date, legal basis and binding scope of each precedent matter as much as its conclusion.
Procurement modality and award criterion are different decisions
One of the most likely errors after Guidance 107 is to turn the statement "pregão is not allowed" into "every contract must use concorrência with technical merit and price". The guidance does not say that.
For the covered services, the procurement modality is concorrência, unless direct contracting due to unenforceability of competition applies. Within concorrência, the award criterion must be defined according to the relevance of technical quality and the estimated value.
When the contract does not exceed the threshold in article 37, § 2, the Guidance indicates technical merit and price as the general rule, but allows lowest price if the preliminary technical study demonstrates that evaluating and weighting technical quality above the minimum requirements is not relevant to the objectives sought by the Administration. This point requires real reasoning. It is not enough to prefer lowest price because it is operationally simpler.
When the estimated value exceeds R$ 392,952.63 in 2026, the situation changes. For the services in items "a", "d" and "h", article 37, § 2, combined with the Guidance, requires best technical proposal or technical merit and price, and the technical-merit-and-price option must assign 70% of the weighting to the technical proposal. In this scenario, lowest price is no longer an option.
The amount cited is the one in force in 2026. Because the thresholds in Law 14.133/2021 are updated, proceedings initiated in later fiscal years should verify the amount then in force instead of copying the figure from an earlier tender notice.
Direct contracting due to unenforceability remains an exception that must be demonstrated
Guidance 107's reservation concerning direct contracting due to unenforceability does not create automatic direct contracting for engineering consultancy. Article 74 of Law 14.133/2021 permits this route when competition is unfeasible and, for specialized technical services of a predominantly intellectual nature, covers the hiring of professionals or firms with recognized expertise in the situations provided by law.
Therefore, recognizing that a design or supervision service is predominantly intellectual resolves the discussion about the inadequacy of pregão, but does not by itself resolve whether direct contracting is possible. If viable competition exists, the rule remains competitive procurement. If the Administration intends to use direct contracting due to unenforceability, it must justify the specific legal conditions for that direct contract, rather than merely reproducing the classification in Guidance 107.
This care avoids another frequent deviation: replacing an improper procurement modality with an equally poorly grounded direct contract. The correct question is not "if pregão is not allowed, can I directly contract?", but rather "is competition actually unfeasible and are the other requirements of article 74 demonstrated in this proceeding?".
How a municipality should treat AGU Normative Guidance 107/2026
Law 14.133/2021 contains general rules on public procurement and contracts that also apply to municipalities. Guidance 107, however, is an act of the Office of the Attorney General of the Union, and its own publication directs its mandatory effect to the legal bodies identified in Complementary Law 73/1993. A municipal attorney's office does not become part of that structure merely because it applies the same Law 14.133.
This means that a municipality should not present the Guidance as if it were, by itself, a binding municipal rule. At the same time, it would be imprudent to ignore it. It is a recent and specific federal interpretation of national provisions of Law 14.133/2021, developed to resolve a disagreement that can also arise in local procurement.
First: map the subject matter to the items in Law 14.133
The municipal analysis should begin with the concrete subject matter. If the contract involves studies, planning, basic or executive designs, inspection, supervision, management, technological control, trials, instrumentation or monitoring that can be classified under items "a", "d" or "h", Guidance 107 becomes a directly relevant reference. If the subject matter is standardized maintenance, adjustment or adaptation that preserves the original characteristics of the asset, a
different discussion may arise regarding common engineering services under article 6, XXI, "a".
Second: identify the legal interpretation that binds the entity
The municipality should verify guidance issued by its attorney's office, its own regulations, local normative legal opinions and acts of the central procurement body, where they exist. The fact that the AGU Guidance is not automatically formally binding does not release the entity from giving reasons for its interpretation of Law 14.133. If the municipality chooses a solution different from the recent federal construction, the reasoning must address the statutory text and the divergence, rather than merely citing an old precedent in isolation.
Third: check the case law of the competent court of accounts
The position of the State Court of Accounts or Municipal Court of Accounts, where one exists, also matters because that external-control body will normally review the management of local resources. TCU case law gains additional weight when the matter falls within its constitutional jurisdiction, including oversight of resources transferred by the Union through an agreement, covenant, adjustment or similar instrument.
Fourth: separate procurement modality, award criterion and direct contracting
After classifying the subject matter and identifying the applicable legal regime, the proceeding must answer three different questions. The first is whether there will be a competitive procurement procedure or whether a demonstrated ground for direct contracting exists. The second is which procurement modality applies. The third is which award criterion fits the case and the statutory value restrictions. Mixing these three decisions is one of the fastest ways to reach the wrong conclusion.
What to do with older precedents that required pregão
Older precedents do not need to be discarded, but they need to be dated. Decision 713/2019, for example, helps explain why many agencies spent years treating standardized supervision and consultancy as common services. Its legal basis, however, was Law 10.520/2002 and the regulations then in force.
Decision 847/2025 carries more weight in the current debate because it already applied Law 14.133/2021. Even so, it predates Guidance 107/2026 and adopted precisely the interpretation that the AGU decided to exclude for its legal bodies: the possibility of looking at low complexity and standardization to remove certain services from the predominantly intellectual category.
In a proceeding initiated after June 2026, citing only earlier decisions favorable to pregão leaves a gap in the reasoning, especially at federal level. The analysis must explain why the new Guidance does or does not apply to the case, which body is legally bound by it and which external-control interpretation governs the procurement.
The decisive point for anyone who must choose the procurement modality today
For a federal body subject to the legal advisory structure covered by Guidance 107, the path is now more defined: if the subject matter falls within the engineering consultancy services in items "a", "d" and "h", pregão must be ruled out. Where competition exists, concorrência is used. The choice among technical merit and price, best technical proposal or lowest price will depend on the conditions established by Law 14.133 and by the Guidance itself, including the mandatory restriction in article 37, § 2, when the value exceeds the applicable threshold.
For a municipality, the answer requires one additional step. The Guidance should not be treated as a direct hierarchical order to the municipal attorney's office, but neither is it merely academic
material. It materially changes the interpretive environment of Law 14.133/2021. Before repeating the use of pregão for engineering consultancy, the municipality needs to compare this interpretation with its own legal regime, its legal advisory authority and the case law of the competent external-control body.
The main change in 2026, therefore, is not merely the phrase "pregão is not allowed". It is the removal, within the federal sphere covered by the AGU, of the freedom to classify a design, inspection, supervision or other service in the cited items as common based only on simplicity or standardization. That is the change that must appear in the reasoning of the procurement proceeding and in any comparison with TCU case law.
