A equipe de apoio na lei nº 14.133/2021: função jurídica, limites decisórios e responsabilização à luz da doutrina e da jurisprudência do TCU

Abstract

Brazilian Law No. 14,133/2021 redesigned the institutional architecture of public procurement by allocating  powers and responsibilities among the contracting agent, auctioneer, procurement committee, support team, legal  advisory bodies and internal control units. This article examines the legal function of the support team, focusing  on the meaning of the statutory verb “to assist” and on the boundary between preparatory or technical support  and decision-making authority. The research is qualitative, legal-dogmatic, bibliographical and documentary,  combining textual, systematic and teleological interpretation of Law No. 14,133/2021, Federal Decree No.  11,246/2022, the Brazilian Introduction to the Rules of Law Act, selected precedents of the Federal Court of  Accounts (TCU), and the scholarship of Marçal Justen Filho, Ronny Charles Lopes de Torres and Joel de  Menezes Niebuhr. The study argues that the support team cannot be reduced to clerical assistance: it may  perform documentary checks, calculations, research, technical verification and other instructional activities that  inform the competent decision-maker. Such assistance, however, does not ordinarily transfer the authority to  judge bids, qualify or disqualify bidders, negotiate, decide challenges or declare the winner. Liability requires an  individualized assessment of conduct and causation, with particular attention to the statutory exception in which  the contracting agent is induced into error by the support team. TCU case law, including Decision No.  3,178/2016-Plenary concerning a Fiocruz procurement, reinforces the distinction between support and decision.  The article concludes that the support team performs a qualified instrumental function embedded in procurement  governance and risk management.