Contracting planning under Law 14,133: which document comes first?

The objective answer is: as a rule, the need must be formalized before being studied and specified. Therefore, in the most common administrative flow, the first document is the DFD Demand Formalization Document, or the equivalent instrument provided for in the regulation of the body or entity.

Then comes the ETP Preliminary Technical Study, the risk analysis and, only after defining the appropriate solution, the TR Term of Reference or the corresponding technical document, such as a preliminary project or basic project.

There is, however, an apparent contradiction: Law No. 14,133/2021 defines the ETP as the “first stage of hiring planning”. This does not make the ETP the first administrative record of need. The DFD precedes the study as the originating document of the demand; ETP is the first technical-analytical stage of solution planning.

This guide considers legislation consulted up to August 3, 2026. As the topic involves general rules, federal regulations and acts specific to states, municipalities, powers and autonomous bodies, the flow must be checked with the regulations applicable to the specific case.

The recommended flow in one line

Identified need → formalization of demand → verification of annual planning → ETP → analysis and treatment of risks → TR or corresponding project → other parts of the preparatory phase → legal control, when required.

The sequence does not mean that all documents are produced in an isolated and linear manner. Planning is iterative: a discovery in the ETP may require an adjustment in demand; An identified risk may change requirements, execution model, supervision or TR criteria.

First document: formalization of the demand

The formalization of the demand records that a certain administrative unit has a problem, a need or a public result to achieve. It must occur before the Administration definitively chooses the object it intends to contract.

Law No. 14,133/2021 provides that annual hiring plans can be prepared based on demand formalization documents. Within the scope of the federal Executive Branch, Decree No. 10,947/2022 defines the DFD as the document in which the requesting area highlights and details the need for hiring and determines its completion for the preparation of the Annual Hiring Plan — PCA.

DFD should not function as an advance term of reference. Its main function is to explain why there is a demand, not to prematurely close the solution.

A consistent DFD typically records:

• the requesting unit and the person responsible;
• the need or problem to be met;
• an initially succinct description of the object;
• the preliminary quantity, when already estimable;
• the date by which the contract needs to be completed;
• the degree of priority;
• an initial estimate of value;
• dependencies or links with other contracts;
• the relationship with the PCA and institutional planning.

In the federal model, part of this information is expressly provided for in article 8 of Decree No. 10,947/2022. The estimate used in this stage is preliminary and may adopt a simplified procedure; it cannot be confused with the detailed hiring budget.

DFD, requisition, DOD or other name?

The Law uses the expression “demand formalization documents”, but does not impose a single national form on all entities. Depending on the regulations, the first document may be given names such as:

• Demand Formalization Document;
• Demand Officialization Document;
• hiring requisition;
• purchase or service request;
• employment opening form.

Some organizations distinguish the document used to form the PCA from the one that actually starts the process in the contracting exercise. The Federal Audit Court's Tenders and Contracts Manual records, for example, regulations from the Federal Justice Council that differentiate between DFD and Demand Officialization Document — DOD. This distinction, however, is not a general rule that is mandatory for all entities.

The legally relevant point is not just the name of the form, but the existence of a regular record of the need, produced by the competent unit and compatible with internal rules.

After the demand comes the Preliminary Technical Study

ETP investigates which solution best meets the problem presented. It should not start with the conclusion that a certain product, supplier, technology or contractual model has already been chosen.

According to Law No. 14,133/2021, the ETP must highlight the problem and its best solution, allowing the technical and economic feasibility of the contract to be assessed. SEGES Normative Instruction No. 58/2022 adds, to the scope to which it applies, socioeconomic and environmental assessment.

In ETP, the team stops working only with a need initially described and starts examining, among other points:

• necessary and sufficient requirements;
• solutions available on the market;
• experiences from previous hires;
• alternatives such as purchase, rental, sharing or internal execution;
• estimates of quantities with calculation memories;
• estimate of the value of the solution;
• whether or not to pay in installments;
• correlated and interdependent hiring;
• preliminary measures taken by the Administration;
• environmental impacts and mitigating measures;
• intended results;
• conclusion on the feasibility of hiring.

IN SEGES nº 58/2022 establishes that the ETP is prepared by the technical area and by the requester or by the planning team, when constituted. It also determines its alignment with the PCA and other applicable planning instruments.

Why should ETP not be written after TR?

The ETP must compare alternatives and justify the choice of solution. The TR, in turn, specifies the object resulting from this choice.

When the TR is completed first and the ETP is produced just to confirm it, a logical inversion occurs: instead of studying the problem to find the solution, the Administration chooses the object and subsequently builds a justification.

The Law itself defines that the ETP forms the basis for the term of reference, the preliminary project or the basic project. The TCU also advises that, once feasibility has been demonstrated, the solution selected in the ETP must be specified, ratified or complemented in the TR or basic project.

Where does risk analysis come in?

Risk analysis should not be left until after the terms of reference. It starts during planning and evolves as the solution is defined.

Article 18, item The TCU explains that it must work together with the ETP and provide inputs for the TR, the management model, the contract and, when necessary, the risk allocation matrix.

Therefore, the most appropriate flow is not necessarily:

ETP fully closed → isolated risk map → TR.

In practice, it tends to work better like this:

1. the team starts the ETP and identifies uncertainties;
2. relevant risks are recorded and assessed;
3. solution alternatives are also compared from a risk perspective;
4. the solution and treatments are defined;
5. ETP receives its conclusion;
6. the TR incorporates the resulting controls, responsibilities and requirements;
7. the risk map or register continues to be updated as relevant facts emerge.

A useful risk register must indicate, according to the methodology adopted by the entity:

• risk event;
• causes;
• possible consequences;
• probability and impact;
• risk level;
• preventive measures;
• contingency measures;
• responsible for the treatment;
• residual risk;
• monitoring moment.

Risk analysis is not the same thing as a risk matrix

The analysis or risk map has a broad scope. It can address, for example, delay in preparation, inadequate quantities, restrictive specification, deserted bidding, lack of capable servers, oversight failures or unavailability of the necessary infrastructure.

The risk matrix provided for in Law No. 14,133/2021 has another function: to distribute between contractor and contractor responsibilities for certain events capable of affecting the contract, especially its economic-financial balance. Therefore, one should not automatically replace the risk map with a generic risk matrix clause, nor treat the two instruments as synonymous.

The Terms of Reference come after defining the solution

For the contracting of goods and services, the TR is the document that transforms the chosen solution into a contractable object. It must present sufficiently clear parameters to guide supplier selection, execution, inspection, measurement, payment and receipt.

Law No. 14,133/2021 determines that the definition of the object occurs by TR, preliminary project, basic project or executive project, as applicable. It also provides that the reasoning of the TR makes reference to the corresponding ETP.

In federal regulation, IN SEGES/ME nº 81/2022 expressly provides that the TR will be prepared based on the ETP, when it has been produced. Among its elements are:

• definition and specification of the object;
• quantitative and contractual term;
• basis for hiring;
• description of the solution as a whole;
• requirements;
• execution model;
• management and supervision model;
• measurement and payment criteria;
• supplier selection method and criteria;
• value estimate;
• budget adequacy, when applicable.

For engineering works and services, the document that consolidates the solution can be the preliminary project, the basic project or the executive project, depending on the object and the execution regime. Therefore, it is not correct to require TR as a universal document for all types of contracting without examining the legal and regulatory framework.

Technical flow of main documents

The table presents a reference flow, not a national rule capable of replacing its own regulations.

Direct hiring requires special attention

In the waiver and non-enforceability processes, Law No. 14,133/2021 requires the document formalizing the demand and lists, “if applicable”, ETP, risk analysis, TR, basic project or executive project. This wording does not authorize the indiscriminate removal of planning instruments; The relevance of each document must be verified according to the legal hypothesis, the complexity of the object and the applicable regulations.

In the federal Public Administration covered by IN SEGES nº 58/2022, the ETP is optional in certain cases and waived in specific situations provided for in article 14 of the instruction, including in the extensions of service contracts and continuous supplies. When the ETP is not prepared, the absence must have a normative basis, and not simply result from the preference of the requesting unit.

IN SEGES/ME nº 81/2022 also establishes its own rules for the instruction of the TR in direct federal contracting. States, municipalities and other administrative structures must check whether they have their own rules, whether they have adopted Union regulations or whether they are executing federal resources subject to specific conditions.

Particularities of the Union, states and municipalities

Law No. 14,133/2021 establishes general rules for direct, autonomous and foundational administrations of the Union, states, Federal District and municipalities, in addition to other bodies covered in its article 1. Public companies and mixed-capital companies, as a rule, remain subject to Law No. 13,303/2016.

Decree No. 10,947/2022 and SEGES INs No. 58 and No. 81 have a delimited federal scope. The two instructions also determine compliance by state, district or municipal bodies and entities when executing Union resources arising from voluntary transfers.

For other situations, article 187 of Law No. 14,133/2021 authorizes states, the Federal District and municipalities to apply regulations issued by the Union. This does not mean that every federal instruction is automatically applicable, without analysis, to any entity or Power. It is necessary to check whether there has been adoption, normative remission or other relevant legal basis.

Before defining the document sequence, see:

• organic law and relevant local legislation;
• regulatory decree of Law No. 14,133/2021;
• PCA regulation;
• standard for preparing the ETP;
• risk management standard;
• organ models and manuals;
• specific rules for works, engineering, information technology or outsourced services;
• acts on standardization of minutes;
• guidelines for internal control and legal advice;
• rules associated with the origin of resources.

Errors that compromise planning

Treat the DFD as a definitive specification

The demand must describe the problem and the expected result. If the DFD already brings a closed solution without justification, the ETP may become just a confirmatory formality.

Copy the same text in all documents

DFD, ETP, risk analysis and TR have different functions. Mechanical repetition does not demonstrate that need, alternatives, risks and execution were effectively examined.

Prepare the risk map at the end just to complete the process

Risks identified after completion of the TR no longer influence requirements, supervision, deadlines, obligations and preventive measures.

Confusing PCA with ETP

The PCA consolidates and organizes demands. The ETP delves deeper into a specific contract, compares solutions and assesses their viability.

Automatically apply federal templates

Union models can be good references, but they must be compatible with the entity's competence, structure, electronic system and regulations.

Dismissing documents without motivation

When a standard allows simplification, optionality or exemption, the process must identify the applicable hypothesis and record the corresponding motivation.

Checklist before completing the preparatory phase

• Was the need formalized by the competent unit?
• Is the demand forecast in the PCA, if any?
• Was any inclusion or change to the PCA justified and approved?
• Did the ETP study real alternatives, rather than just confirming a previous choice?
• Do quantities and estimates have calculation memory?
• Is the conclusion about feasibility expressed?
• Were the risks identified before the consolidation of the TR?
• Do risk treatments appear in the requirements and management model?
• Does the TR correspond to the solution approved in the ETP?
• Were the appropriate parts used for the type of object?
• Were the specific norms of the entity, Power and source of resources verified?
• Are the simplification or dismissal hypotheses motivated?
• Is the instruction ready for applicable legal control?

Legal review: when to forward?

As a rule, Law No. 14,133/2021 determines that, at the end of the preparatory phase, the bidding process is forwarded to the legal advisory body for prior control of legality. The analysis also covers direct hiring and other related instruments.

The Law itself admits that legal analysis is waived in cases previously defined by an act of the highest competent legal authority, considering factors such as low value, low complexity, immediate delivery or use of previously standardized drafts. Therefore, the unit should not assume dismissal on its own.

Legal referral also does not correct incomplete technical planning. Before analysis, the records must demonstrate the need, the chosen solution, the risks, the object and the justifications produced by the competent areas.

Consult the entity's rules and the acts of the respective legal advisor. After completing and reviewing the technical instruction, forward the process to the appropriate legal control, without assuming that models or exemptions adopted by another body are automatically applicable.