TCE/PE states that positions of contracting agents and auctioneers must be filled by civil servants

On 04/07/2025, Ruling No. 584/2025 was published, in which, in consultation, the plenary of the Court of Auditors of the State of Pernambuco (TCE/PE) understood that positions of contracting agents and auctioneers must be occupied by effective public servants.

Issued within the scope of Proceeding No. 24100118-3, Ruling No. 584/2025 responded to the following query formulated by the President of the Municipal Chamber of São José da Coroa Grande: “What is the understanding of the distinguished Court of Auditors of the State of Pernambuco, considering the doctrinal divergence, regarding the subject of the designation of the contracting agent and the possibility of public administration entities, in general, establishing a specific rule regarding the indication of a contracting agent so that he is not necessarily an Effective Server or Public Employee of the permanent staff?”

After collecting statements from its technical area and the Public Accounts Office, the TCE/PE prejudged the matter for future cases in the following terms:

“1 - Art. 6, item LX, and art. 8, caput, both of Law No. 14,133/2021 have the nature of a general rule and must be observed by subnational entities;

2 - The contracting agents or auctioneers responsible for conducting the competition must be civil servants or public employees of the permanent staff of the Public Administration, except in exceptional situations, duly motivated by the competent authority, which justify non-compliance with the aforementioned provisions;

3 - In the event of temporary impossibility of appointing a permanent civil servant or public employee to the position, the hiring of a competent civil servant for a fixed term is exceptionally permitted, with detailed demonstration of the legal requirements for admission being essential, as well as (i) the non-existence of a qualified civil servant in the permanent staff of the administration, (ii) the creation of an action plan to train permanent public agents in accordance with Law No. 14,133/2021 and (iii) the capacity of the civil servant who will temporarily assume the position, upon presentation of certification from a government school or experience in performing the corresponding duties;

4 - The negligent conduct of the manager who failed to admit and train effective employees to fulfill the duties assigned to the hiring agent is subject to liability.”

As can be seen, for the TCE/PE, the premise that the positions of contracting agents and auctioneers must be occupied by effective public servants can only be made an exception in transitory and specific situations that are duly justified.

Written by Aldem Johnston

Email: infrastructure@mellopimentel.com.br .