Public tenders: Lula government wants to change rules – 05/21/2023 – Market

The government of Luiz Inácio Lula da Silva (PT) is considering changing the rules of public tenders to incorporate additional instruments for assessing candidates and allowing the use of technology in some phases or throughout the selection process.

The Executive’s assessment is that this could improve candidates’ access, increase competition, provide legal certainty and allow the government to select its employees more effectively.

The intention is to support the discussion of a bill that has already been approved by the Chamber of Deputies and is awaiting consideration by the Federal Senate. The topic has been dealt with in internal meetings at the Ministry of Management and Innovation in Public Services and is part of a list of actions that the portfolio intends to put in motion in the coming months, which includes a new law on quotas in public tenders.

The proposal under consideration includes most of the government’s objectives. It seeks to validate practices already adopted today in selections, but which are constantly questioned by the courts, and expands the instruments available to the public administration to select its new members.

If approved, the rules will only apply to new selections. The intention is for the guidelines to be applied to the Union, states and municipalities.

The text of the project may still undergo modifications, but its current version allows evaluating candidates for their knowledge, skills and competencies. The minimum requirement to take a test (written, objective, dissertation or oral) remains, as it already happens today, but the commission responsible for the contest may require other steps.

In the skills assessment, it will be possible to measure the intellectual or physical aptitude for carrying out the activities of the position, which includes physical tests, preparation of documents and simulation of tasks specific to the position.

In the assessment of competences, the idea is to analyze behavioral aspects through an interview, psychological assessment, mental health examination or psychometric test.

The list of steps used in the selection process will be decided by the organizing committee and will need to be transparently communicated to candidates.

Another provision provides that the contest may be held “totally or partially” remotely, online or on an electronic platform, with secure individual access and in a controlled environment, provided equal access is guaranteed.

The effective use of technology would still depend on regulation, which can be general for each sphere of government or specific by body. The rules must undergo prior public consultation and follow information security standards. The use or not of the tools will be a choice of the directors.

According to members of the government, there is not yet a successful model established for carrying out distance tests, with guaranteed security for the candidate and for the public administration, but the intention of the Executive is to create a comprehensive law, which allows the use technology in the future if the possibility proves viable.

A member of the government says that Brazilian legislation needs to be prepared, since technological evolution has been fast, and in a short time a safe way to apply a test remotely without risk of fraud may emerge.

The gain for public administration would not necessarily be financial. The use of technology to carry out tests requires large investments. Enem Digital, for example, was discontinued due to low student demand and high cost. But its achievement, albeit timid, is considered a paradigm that transformation is possible.

For the government, the main advantage of taking steps online is to increase competition. The diagnosis is that the public administration may be lacking qualified labor or an employee dedicated to public service because these people cannot afford the costs of travel, accommodation and food to undergo the selections. This creates a kind of pre-barrier.

Even if the technology is only used in a few stages, this would already be a gain in relation to the current model, which forces the outside candidate to move repeatedly as he advances in the selection process.

For specialists, the law, if approved, will be an important advance, but the implementation of technologies can prove challenging in practice, especially in an unequal country like Brazil.

“Changes are welcome, especially at this time of technological advancement, but it is also something we have to pay attention to. There are municipalities that are not fully computerized, some are more analogical”, says the president of Fonacate (Fórum Nacional Permanente de Typical State Careers), Rudinei Marques.

In the opinion of lawyer Eduardo Martins, who specializes in public tenders at Schiefler Advocacia, the proposal could modernize selection processes. He, however, makes reservations about the safety of the operation.

“It is really difficult to guarantee that the person who is running a test is exactly the one registered in the public tender. There must be some inspection, perhaps in person, to guarantee that the person is who he says he is”, he says.

Lawyer Marcelo Figueiredo, president of the Brazilian Association of Democratic Constitutionalists, says that the text must ensure the candidates’ privacy and equal conditions in the process as a whole.

“The candidate needs to be evaluated privately. He can do an interview virtually, as long as he has mechanisms that guarantee that this process is indestructible. There cannot be a third party participating. And he needs to have a computer mechanism that guarantees that there is no hacker helping the candidate,” he says.

If the process is not in fact safe, the use of the tool could even increase the judicialization, in a side effect contrary to what was intended by the government.

Regarding the other aspects of the law, the president of Fonacate says that Brazil needs a general law to standardize the rules for public tenders, which are currently quite fragmented. “Now, what would be important is a general law, which also obliges states and municipalities”, he says.

The current version of the proposal frees states and municipalities to develop their own regulations to fill local positions. At the time of the processing, an opinion of the Chamber argued the need to respect federal autonomy. For Marques, this makes no sense, given that regional governments concentrate the largest number of civil servants and positions.

For lawyer Eduardo Martins, the best thing would be to try to reconcile some degree of autonomy for states and municipalities to adapt the rules to their peculiarities with the necessary legal certainty for selection processes.

“The ideal would be to find a middle ground, where states and municipalities could legislate about it, but which also have minimum general guidelines, legislation that brings a north and a little more security”, he says.

Despite the advances, Figueiredo is skeptical about the ability of a law on competitions to bring down the judicialization rate. According to him, there are stages that involve subjectivity in the evaluation, which should continue to raise questions.

The project tries to remove some loopholes that today are the target of intense struggle in the courts, such as cases of discrimination. The text expressly prohibits any differentiation of candidates based on age, gender, marital status, physical condition, disability, ethnicity, place of birth, origin or place of origin.

The text contains a device considered an asset by the government, in case the legal disputes persist. The project says that a judge or control body needs to consider the reality of the facts when analyzing a request for contestation of evidence or criteria provided for in the public notice, not just the abstract interpretation of legal norms.

In practice, the proposal tries to guide the performance of the Judiciary so that it also considers the consequences of each decision and foresees alternatives and solutions, in case the challenge or suspension of the process is in fact necessary.

UNDERSTAND THE MAIN POINTS OF THE PROJECT

Assessment forms

Candidates are assessed on their knowledge, skills and competencies. The text lists different tests that can be used to measure these abilities:

• Knowledge: written tests, objective or essay, and oral tests, covering general or specific content

• Skills: preparation of documents and simulation of tasks specific to the post, as well as physical tests compatible with its activities

• Skills: psychological assessment, mental health examination or psychometric test, conducted by a qualified professional under the terms of specific regulations

The text also consolidates a practice already applied by some careers today and that can be extended: the holding of training courses, of an eliminatory or qualifying nature, with the aim of introducing candidates to the activities of the body

use of technology

The project authorizes the use of online tools or electronic platforms to carry out part or all of the public tender. The details would still depend on regulation, but some minimum requirements would already be fixed:

• Secure individual access in a controlled environment

• Ensuring equal access to tools and devices in the virtual environment

• Mandatory prior public consultation

• Compliance with information security standards provided by law