ATRICON and other entities recommend that piggybacking on Price Record Minutes be an exceptional measure

On 02/04/2025, the Association of Members of the Courts of Auditors of Brazil (Atricon), the Rui Barbosa Institute (IRB), the National Council of Presidents of the Courts of Auditors (CNPTC), the Brazilian Association of Courts of Auditors of Municipalities (ABRACOM) and the National Association of Ministers and Substitute Counselors of the Courts of Auditors (AUDICON) issued Joint Recommendation Note No. 01/2025 recommending that Brazilian Courts of Auditors adopt or expand procedures for monitoring adherence to price registration records by bodies and entities under their jurisdiction.

The guidelines that the Note from ATRICON and other entities recommend be adopted by the Courts of Auditors when monitoring adherence to price registration records (the so-called “carpooling”) are as follows:

“1. Adhesion to price registration records must be carried out exceptionally and through a specific administrative process;

2. The possibility of adhesion must be expressly provided for in the bidding notice for the price registration system or in the minutes themselves, in cases of waiver and non-requirement of bidding (art.82, §6º Law nº 14.133/21);

3. The accession process must be accompanied, as a minimum, by the following elements:

a) preparatory instruments for contracts provided for in Law No. 14,133/21, especially preliminary technical study, demand formalization document and terms of reference or basic project;

b) qualitative analysis of the registered object, which demonstrates that it fully meets the needs of the adhering body or entity, especially regarding the conditions of execution, receipt and payment and the guarantees offered;

c) justification of the advantage of joining, including in situations of probable shortage or discontinuity of public service;

d) demonstration, through the use of the parameters established in art. 23 of Law No. 14,133/21, that the registered values are compatible with those practiced in the market;

e) prior consultation with the managing body or entity and the supplier;

f) formal act of acceptance by the managing body or entity, with an express declaration that the intended membership is within the legal limits (art. 86, §§ 4º and 5º);

g) formal act of acceptance by the supplier, with an express declaration that it has the conditions to fulfill the intended contract resulting from the adhesion without prejudice to the commitments already assumed;

h) proof of research into current price registration records for the object on the National Public Procurement Portal (PNCP) and justification for the choice, if alternatives exist;

4. The search for minutes in the PNCP must be carried out by the participating body or entity itself, without the participation of private parties;

5. Any participation by individuals in identifying the current minutes for the purpose must be mentioned in the accession process and does not eliminate the duty of the adhering body or entity to carry out and prove the aforementioned research in the PNCP and to justify the choice, in the event of alternatives;

6. Prior to issuing the formal act of acceptance, the managing body or entity must verify compliance with the quantitative limits provided for in §§ 5 and 6 of art. 86 of Law No. 14,133/21 and other limits that may be provided for in the regulations of the respective federative entity;

7. Adherence to the minutes must be subject to prior legality control by the legal counsel of the body or entity (art. 53, § 4º of Law nº 14.133/21);

8. The managing bodies and entities must carry out the control and management of the minutes, making available, at least, the following information on the respective transparency portals:

I – the quantities registered, the contracts signed and the balances, by item;

II – accepted and completed membership requests, with identification of the adhering body or entity, the object and its quantity;

9. Activities and procedures related to adherence to and management of current minutes must be subject to administrative regulation by the Federation's bodies and entities;

10. Adherence to the minutes of a public consortium by another public consortium is permitted exclusively for its own consumption, and the extension of adherence to the consortium bodies and entities is not applicable;

11. In compliance with the principles of publicity, transparency and access to information, summaries of adhesions must be made available on the websites of the related bodies or entities, regardless of the number of inhabitants of the federative entity.”

In addition to such recommendations to the Courts of Auditors, Joint Recommendation Note No. 01/2025 also suggested to the National Public Procurement Network Committee that it “evaluate the possibility of developing or adapting a mechanism for disclosing contracts (or similar instruments) resulting from adherence to price registration records by a state, district or municipal public administration body or entity (and also for 'Non-SISG Bodies' at the federal level), in order to ensure the traceability of the original purchase process and its categorization as 'adherence to ARP' or similar expression”.

Among all the recommendations made by Atricon, IRB, CNPTC, ABRACOM and AUDICON, we highlight the one that adhesions to price registration minutes must be carried out exceptionally and through a specific administrative process, since it is clear that, if the Courts of Auditors follow the terms of Joint Recommendation Note No. 01/2025, the control bodies will start to demand that the Public Administration treat the piggybacking on Price Registration Minutes as an exceptional measure, something that goes against what has been seen in practice.

Written by Aldem Johnston

Email: infrastructure@mellopimentel.com.br .