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REPLY OF INTERPOSITION OF RESOURCE AGAINST REVOGÃO OF THE

ADMINISTRATION IT PUBLISHES

The public Administration as alleges its


article 49, of Law 8,666, authorizes the revocation of the licitation for reasons of
public interest, for supervenient fact duly proven. The interpretation of the law
mentions that the winning company in the certame has only expecting right to
the act of contract, submitting itself it the convenience judgment and chance of
the contracting public being
As in it teaches the doctrine to them of the
Prof. Dr. Alexander de Moraes, of Constitucional law:
“One says that the law grants in explicit
way or implicit greater filing freedom,
because however it is the proper law that
express confers to the Administration the
discricionariedade of filing, however the
law is omissive in relation the determined
fática situation, therefore it it is not
possible to enumerate all taxing the acts
that practical the administrative one
demands, allowing to the administrator
biggest freedom of performance, always
inside of the parameters of legality and
morality

As it displays in its teachings one of the


most respected French specialists in administrative law, Dr.René Chapus,
senão let us see:
“(...) the discretional power of the
administrative authorities is not another
senão the power to choose between two or
more equally in agreement decisions or
two or more behaviors to the legality,
therefore, exerting the discretional power,
the Administration alone can make what
the Right allows it.
This bigger freedom of performance will
have to be made by means of criteria of
convenience and chance of the
administrator. Discretional administrative
act is about the call. “

In this manner, to no power to be the


executive it does not compete analyzing the chance and the convenience of the
administrative acts, intervening with the sphere of the discretional power of the
governor, substituting its will and deciding what it is better for the public interest.

As in it teaches the Doctrine to them of


the Profª Drª Maria Sylvia Zanella di Pietro:

” The severity, can be said that, with


regard to the discretional act, the Judiciary
one can appreciate the aspects of the
legality and verify if the Administration did
not exceed the free space left by the law
and invaded the field of the legality”
(Administrative law, 16ª ed., P. 211).

Thus also it occurs with the revocation of


the licitation. As nº makes use article 49 of the Law. 8.666/93, it can be revoked
by reasons of supervenient interest public decurrent in fact duly proven
pertinent and enough to justify such behavior, having to annul it for illegality ex-
officio or provocation of third, by means of seeming written and duly based.
Regarding the subject, leciona Hely
Lopes Meirelles:

“Revocation: the revocation of the


licitation, as already we saw, seats in
reasons of chance and administrative
convenience. Therefore, in contrast of the
cancellation, that can be intentionally for
the Judiciary one, the revocation she is
privative of the Administration. They are
the conveniences of the service that
command the revocation and constitute
the joust cause of the revocatory decision,
that, therefore, needs to be motivated, duly
warned to become into arbitrary act (...)
“(Brazilian Administrative law, 29ª ed., P.
302).
Concerning the revocation of the certame,
leciona Marçal Justen Son in the
Commentaries to the Law of Licitations
and Administrative Contracts (Ed.
Dialectic, 11ª Ed.).
“The Administration can conclude that, in
the licitation, she had a proposal that she
was the best one of all. Therefore, it
homologates the result found for the
Commission. If to conclude that the
proposal, even so best amongst the
formulated ones, was not enough
interesting for the Administration, will have
to revoke licitação' (p. 427)
(...)
“the revocation if establishes in judgment
that relatively selects the convenience of
the act to the public interest under
guardianship of the State. In the exercise
of discretional ability, the Administration
undoes its act previous to repute it
incompatible with the functions attributed
to the State. (...). After
practised the act, the Administration
verifies that the collective or supply-
individual interest could better be satisfied
for another one saw. “It will promote, then,
the abolishment of the previous act” (p.
463/464).

In this manner, the liquid and certain right


does not exist, therefore, as she is known, the company who is considered
winning of licitatório certame has mere expectation of adjudication of the bid on
object, not generating obligatory bond of act of contract with the public being.
(GN)

The same agreement comes being adopted


for ours Cut of Justice:

“MANDAMUS. LICITATION. DISCORD OF


the WINNING BIDDER IN RELATION To the
REVOCATION OF the CERTAME.
ABSENCE IN THE SPECIES OF
INDIVIDUAL SUBJECTIVE RIGHT TO
CONTRACT WITH THE PUBLIC POWER.
MAKING USE the WINNING BIDDER ONLY
OF EXPECTIVA OF RIGHT OF ACT OF
CONTRACT WITH the PUBLIC POWER,
LEGAL IMPEDIMENT INEXISTS IT
ADMINISTRATION TO REVOKE
LICITATION THAT DOES NOT TAKE CARE
OF To the SUPREMACY OF the PUBLIC
INTEREST. DENIED SECURITY " (Special
Agency - MS nº 334.798-6. Rel. DES.
Ângelo Zattar. Public. 18.08.2006).

This is the agreement of the prominent


Superior Court of Justice:

“ADMINSTRATIVO. LICITATION.
INTERPRETATION OF ART. 49, § 3º, OF
LAW 8.666/93.
1. (...)
2. (...)
3. In progress revocation of licitation on
the basis of public interest duly justified
does not demand
the fulfilment of § 3º of art. 49 of Law
8.666/93.
4.(...).
5. 3º of art only has applicability of §. 49 of
the Law nº 8,666/93, when the licitatório
procedure, for having been concluded,
generated subjective rights to the winning
bidder (adjudication and contract) or in
cases of revocation or cancellation where
the bidder is pointed, in direct or indirect
way, as having given to cause when
proceeding the abolishment from the
certame.

This means that, if he will not have been


homologated, the public administration it can and it must revoke power-to have,
in case that supervenient fact appears.

The supervenient fact that however is


mentioned mentions physical changes to it in 2010 that it will pass the Section
of Pathology, as came being planned for the General Direction in accord with
Division of Pathology and the Nucleus of Engineering and that in transcorrer of
the licitation it was waked up that would have physical reformularization of the
place.. Ahead of the displayed one, we inform that the above-named
supervenient fact and the attendance of the proclamation are not bedding
enough to keep the revocation of the certame, having as supedâneo art. 49 of
the law 8,666/93 and all its beddings.