As a general rule, subcontracting is not permitted in public contracts, except in cases expressly provided for in the bidding notices and in the agreement instruments themselves. In other words, for subcontracting to be valid, it requires prior authorization by the contracting body in writing and signed by the person with the authority to sign an addendum. This issue is regulated by arts.
72 and 78, inc. VI, of Law no. 8,666/1993.
Unauthorized subcontracting, in this way, constitutes a serious offense and must be punished by termination of the contract, in accordance with art. 78 of Law 8.666/1993. The contract manager must, however, consider that, although not provided for in the notice and contract, due to the growing process of outsourcing, subcontracting is common, and there must be a certain flexibility email database australia in the interpretation of the legal provisions that regulate this institute. Special attention must therefore be paid to cases where the object of the contract has a prolonged term — more than 6 (six) months, for example — and where the service is provided on the agency's premises.
There is no link between the agency and the subcontracted company. The relationship between the agency, the contractor and the subcontractor is what in law is called res inter alios. There are exceptions, however, for Labor Law and Social Security Law, in the cases of service provision and construction contracts. For these branches of Law, and in these cases, the service recipient becomes jointly liable with the subcontractor and the subcontractor.
The rules for subcontracting must be defined in the notice or contract and must allow the contractor to be aware of its permission. Furthermore, it is necessary to ensure that the requirement for subcontracting is not included in the inappropriate phase of the bidding process. As an example, the Federal Court of Auditors (TCU) has stated that “the requirement to present a prior contract with the company to be subcontracted, for the purposes of technical qualification in the competition [...], constitutes an undue restriction, which violates art. 30, §5, of Law 8.666/1993 and art. 37, item XXI, of the Federal Constitution of 1988.”1
In this specific case, during the qualification phase, there was a requirement that the company that won the bid already have a prior contract with a subcontracted company. This requirement is unreasonable and unmotivated and allows the creation of burdens even before the main contract comes into effect.
It should be noted that it is not possible to fully subcontract the object of the contract, since this violates bidding principles and is also a conduct repudiated by TCU case law, according to Ruling 954/2012 of the Plenary.
1 TCU. TC Proceedings No. 011.161/2015-9. Ruling No. 11.841/2016 – 2nd Chamber. Rapporteur: Justice Ana Arraes.