Provisional and final acceptance under Law 14.133: who checks, what to record and when to reject

Acceptance of the contract object is not a single act. Under Brazil's Law 14.133, the Administration must distinguish the physical delivery or performance, measurement of what was carried out, provisional acceptance, final acceptance, and the later expenditure liquidation and payment flow. Mixing these stages increases the risk of certifying performance without enough evidence, paying a disputed portion, or leaving a nonconformity undocumented.

The starting point is Article 140 of Law 14.133/2021. For works and services, provisional acceptance is performed by the person responsible for monitoring and inspection, through a detailed record, after technical requirements have been checked. Final acceptance is performed by a public servant or committee designated by the competent authority, also through a detailed record, this time demonstrating compliance with contractual requirements. For purchases, provisional acceptance may be summary in nature, with a later check of the material's conformity, while final acceptance requires a detailed record.

Delivery, measurement, certification and acceptance are not synonyms

Measurement is used to quantify and assess the quality of what was actually performed. Within the federal direct, autonomous agency and foundation administration, Decree 11.246/2022 defines technical inspection as monitoring intended, among other points, to assess quantity, quality, timing and method of performance against the indicators in the notice, including for payment purposes. This helps explain why measurement can support acceptance without being the same act.

Who performs provisional acceptance

For works and services, the Law assigns provisional acceptance to the person responsible for monitoring and inspection. The act must be supported by a technical check and documented in a detailed record. For purchases, provisional acceptance may be made summarily by the person responsible for monitoring and inspection because conformity of the material will still be checked later.

In the federal Executive branch, the current regulation provides more detailed roles. The technical inspector performs provisional acceptance through a record showing compliance with technical requirements. The administrative inspector may perform provisional acceptance from the administrative standpoint, and the sector inspector performs technical and administrative duties when appointed for that purpose. The same decree provides that the technical inspector's certification confirms provisional acceptance and is sent to the contract manager for ratification. Outside this federal scope, the entity's regulation and the specific contract must be checked before reproducing the same division of duties.

Who performs final acceptance

Law 14.133 provides that final acceptance is performed by a public servant or committee designated by the competent authority, through a detailed record demonstrating compliance with contractual requirements. In the federal Executive branch, the current wording of Decree 11.246 states that final acceptance is carried out by the contract manager, the sector contract manager, or a committee designated by the competent authority.

Final acceptance should not be an automatic signature after provisional acceptance. It should result from reviewing the evidence produced by inspection, checking outstanding issues, confirming required corrections, and verifying the acceptance criteria set out in the terms of reference, design documents, notice, proposal and contract.

Evidence checklist for provisional acceptance

The evidence set varies with the object. The inspector should use the contract as the reference and record only evidence relevant to the procurement. A well documented flow commonly checks:

• identification of the contract, purchase order or service order, and the period covered by the performance;
• quantities delivered or performed, with calculation records when measurement is required;
• quality, performance, deadline and method criteria established in the contract documents;
• checklists, inspection reports, field records, photographs or other evidence suitable for the object;
• results of tests, trials, measurements and validations required by technical standards or the contract;
• serial numbers, batches, certificates, manuals, licenses, warranties or technical documents when applicable;
• identified occurrences, required actions and the deadline granted for correction;
• objective identification of the accepted, deducted, pending or rejected portion, when such distinction applies;
• date, responsible person and signature or electronic record identifying who performed the check.

Article 140 also provides that, unless the notice or a regulatory act states otherwise, trials, tests and other evidence required by official technical standards to assess proper performance are borne by the contractor. This rule must be read together with the procurement documents and the contract so that requirements are not created only at the acceptance stage.

When the object should be rejected

The legal criterion is objective: the object may be rejected in whole or in part when it does not comply with the contract. Rejection should be linked to a verifiable obligation, not to a generic impression by the inspector. Examples include a shortfall in quantity, incompatible specifications, defects, failure in a performance test, incomplete service, performance below quality criteria, or failure to deliver a mandatory technical item.

Article 119 of Law 14.133 requires the contractor, at its own expense, to repair, correct, remove, rebuild or replace the object when defects, deficiencies or inaccuracies resulting from performance or materials are found. The nonconformity record should therefore state exactly what is wrong, where the corresponding contractual requirement is found, which portion was affected and what corrective action is required.

What to include in the nonconformity record

• the fact identified, with date, location and the affected portion of the object;
• the breached clause, specification, drawing, indicator or requirement;
• the evidence supporting the finding;
• the extent of the problem and its impact on quantity, quality, safety, functionality or schedule;
• the required correction or replacement measure;
• the deadline established under the contract or by the competent authority;
• the temporary effect on certification, invoicing, deduction or final acceptance, when applicable;
• referral to the manager when the required action exceeds the inspector's authority.

Rejection is not the same as a sanction

Rejecting the object is an execution management measure: the Administration recognizes that the delivery does not comply with the contract and requires correction, replacement or another appropriate action. An administrative sanction is a separate stage. A nonconformity may also amount to contractual nonperformance and justify an investigation, but a penalty does not arise automatically from the rejection record.

Law 14.133 establishes administrative violations and sanctions in Articles 155 and following and provides specific accountability procedures. In the federal Executive branch, Decree 11.246 assigns the manager responsibility for taking steps to formalize an accountability proceeding when appropriate. The inspector should therefore record facts and evidence, refer matters beyond his or her authority, and avoid turning acceptance into a punitive decision without the proper procedure.

Certification does not mean automatic payment

Certification is connected to performance. Under the federal regime of Decree 11.246, the technical inspector's certification confirms provisional acceptance and is sent to the manager for ratification. Payment depends on the expenditure liquidation flow, contractual conditions and required documents. Law 14.133 itself places acceptance and payments in separate chapters.

It is also important to avoid the opposite mistake: using a partial dispute to block everything without analysis. Article 143 of Law 14.133 provides that, when there is a dispute about the dimension, quality or quantity of the object, the undisputed portion must be released within the payment deadline. In practice, measurement and the nonconformity record should clearly identify what is disputed and what has already been recognized as due.

Practical flow for purchases

1. Record arrival of the goods and check basic delivery information.
2. Perform summary provisional acceptance when applicable, without treating it as final acceptance.
3. Check quantity, specifications, integrity, accessories, documentation, tests and other contractual criteria.
4. Record nonconformity and reject all or part of the delivery if it does not comply.
5. After correction or confirmation of compliance, issue final acceptance through the competent agent.
6. Send the documentation to the liquidation and payment flow in the amount actually recognized.

Practical flow for services and works

1. Measure the performed portion according to contractual criteria.
2. Gather reports, field records, tests, calculation records, technical documents and other relevant evidence.
3. Issue provisional acceptance through the person responsible for monitoring and inspection, with a detailed record.
4. Record outstanding issues and require correction before recognizing as compliant what does not meet the contract.
5. Submit reports and evidence to the agent responsible for final acceptance.
6. Issue the detailed final acceptance record only after contractual requirements have been verified.
7. Proceed to liquidation and payment under the contract and applicable financial rules.

Final acceptance does not end all liability

Provisional or final acceptance does not eliminate civil liability for the solidity and safety of the work or service, nor professional ethical liability for proper performance, within the limits of law and the contract. For works, Article 140 also establishes the contractor's strict liability for at least five years for the solidity and safety of materials and services and for the functionality of construction, renovation, recovery or expansion, without prejudice to a longer warranty provided in the notice and contract.

Before standardizing the checklist, check four documents

The Law provides the structure, but the operational procedure depends on the specific case. Article 140 itself provides that deadlines and methods for provisional and final acceptance are defined by regulation or the contract. Before adopting a single form, check:

• the regulation applicable to the agency or entity;
• the terms of reference, design, notice, proposal and contract;
• the appointment act for the manager, inspectors and any committee;
• the internal templates and guidance used by the entity.

For the federal public administration, the Federal Attorney General's Office templates for Law 14.133 provide updated references for purchases, services and works. They should be adapted to the object and the agency's rules rather than treated as substitutes for reading the specific contract.

Official sources for verification

• Law 14.133/2021, especially Articles 117, 119, 140, 141, 143 and 155 to 158.
• Decree 11.246/2022, especially Articles 19 and 21 to 25, in its current wording.
• Federal Attorney General's Office procurement and contract templates under Law 14.133.