Decree Enacted to Waive Bidding for Procurement of Specialized Equipment and Services in National Defense Areas
Ericson Scorsim. Lawyer and Consultant in Regulatory Communications Law. Ph.D. in Law from the University of São Paulo (USP). Author of the Communications Law Collection.
On February 18, 2021, Decree N. 10,631 was published, detailing the legal hypotheses for procuring specialized equipment and services in defense areas with the waiver of bidding.
According to the decree text, the exemption of bidding is justified in the procurement of works and services if, “upon the disclosure of its location, need, characteristics of its scope, specification or quantity may place national security objectives at risk.” Thus, the government is authorized to waive the public tender process when procuring specialized services in intelligence, information security, cybersecurity, communications security, and cyber defense. Hardware and software purchases also fit under this provision.
An example would be the surveillance, monitoring, and tracking software, and software for intercepting communications and inspecting network data traffic. Another example is procuring companies that specialize in social network data tracking services and in the geolocation of people, objects, and vehicles. The procurement of satellite services for the purpose of spatial geo-intelligence may, in principle, also fit under such provision. Also, intelligence services can be used to collect signals from land, maritime, aerospace, and cyber intelligence.
The decree authorizes procuring consulting services related to any of the matters mentioned above in the services aspect. It also waives the bidding process for “launching space vehicles and the respective procurement of goods and services of the Union for its operationalization.” This legal hypothesis is directly related to the Alcântara aerospace base’s operations, located in the Brazilian state of Maranhão. Nevertheless, no matter how many national security reasons are invoked, minimum transparency is required in such procurement processes.
The publicity principle binds public administration, and it cannot be set aside, even in this case. There are procurement opportunities in the government sector for companies providing intelligence, information security, cybersecurity, communications security, and cyber defense technologies and services.
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