For this reason, it is up to it to examine whether the prices offered by bidders are compatible with those of the legal market, considering the terms of Law No. 8,666/1993.
The feasibility of the proposal, however, raises doubts during the contracting process. Law No. 8,666/1993 establishes that the Public Administration must have an internal reference to carefully examine whether the bidder's proposal is feasible or not. As provided for in art. 48 of the aforementioned legislation, proposals whose values are less than 70% of the amount budgeted by the Administration are unfeasible.
The Federal Court of Auditors (TCU) states that, when the Public Administration verifies the occurrence of an unfeasible price, it must provide the bidder with the opportunity to demonstrate the feasibility of its proposal. In this sense, Ruling No. 6,185/2016 determines the following:
Considering that the disqualification of a bidding company due to the lack of information in the proposal that can be supplied by the due diligence provided for in art. 43, § 3, of the Bidding Law is irregular; Considering that, through email database australia Summary 262, this Court established the understanding that “the criterion defined in art. 48, item II, § 1, items 'a' and 'b', of Law No. 8,666/93 leads to a relative presumption of unfeasibility of prices, and the Administration must give the bidder the opportunity to demonstrate the feasibility of its proposal”;
1.7. Provide notice [...] that, if the interest in contracting the services that are the object of the revoked Electronic Auction [...] is maintained, carry out a new bidding process, the conduct of which must be free of the following irregularities committed in the conduct of that one:
1.7.1. disqualification of bidders due to the absence of information in the proposal that could be supplied by the diligence provided for in art. 43, § 3, of the Bidding Law, which is contrary to the case law of this TCU exemplified by Rulings 1,170/2013 and 3,615/2013, both of the Plenary;
1.7.2. disqualification of allegedly unfeasible proposals, without granting the bidder the right to unequivocally prove the feasibility of its proposal, contrary to Summary 262 of this Federal Court of Auditors.
It should be noted that the value budgeted by the Administration is merely a reference, and companies with extensive experience in the market may submit proposals with values below those budgeted by the Public Administration and demonstrate with certainty that they have the necessary conditions to execute the object.
In a fundamental analysis, it can be seen that the principles of equality and the search for the most advantageous proposal assume a prominent position during the bidding process.