The validity of the requirement of technical-operational qualification in public bidding

Abstract

This article deals with the figure of the technical-operational qualification, provided for in Law 8.666/93, as a qualification mechanism in bidding processes conducted by the Public Administration, focusing on engineering works. It examines, in its course, based on the doctrine and jurisprudence - in particular of the Courts of Auditors - the possibilities - and restrictions - of requiring the past experience of the bidder in services whose scopes are part of the object of the bid as a technical condition sine qua non for their participation in a given event. The paper also discusses the criteria and principles for the qualitative evaluation of the technical certificates required, usually, to prove the previous experience. Finally, it shows that the current majoritarian tendency of the Courts - and of the legislator itself, with the new legal frameworks on the subject - is to restrict, as far as possible, the possibilities of requiring previous experience as a factor of technical habilitation, in favor of the competitiveness between the bidders, in the search for greater efficiency of public management.