O estudo técnico preliminar (ETP) no diálogo competitivo: possíveis incompatibilidades no plano concreto

One of the innovations presented by the New Bidding Law is the modality of competitive dialogue and the reception of greater concern with the preparatory phase of the bidding procedures. Competitive dialogue will be adopted in the event of technological or technical innovation, insufficient knowledge of the technical specifications of the object and the need to adapt the available solutions on the market. In addition, Law no 14.133/2021 makes it mandatory to submit a preliminary technical study, including requirements related to the best solution that, at the time of the preparatory phase of the competitive dialogue, is unknown to the public administration. Therefore, this article aims to examine possible incompatibilities of the competitive dialogue, especially in relation to the mandatory elements of the preliminary technical study and the possible consequences of non-compliance. An analysis of article 18, §2, of Law no 14.133/2021, showed that the new bidding method is incompatible with the mandatory elements set out in the law, which may discourage its adoption, or even impact on the manager’s liability for presenting a generic preliminary technical study, that does not reflect the needs of the contract.