NGT Brasil filed a writ of mandamus, with a request for an injunction, against the government of Mato Grosso do Sul, pointing out illegalities in Public Call Notice 001/2022, which provided for the public selection of companies for the exploitation of lottery products involving raffles and betting, including fixed quotas.
According to NGT, the public notice prevents wide competition in the operation by limiting the accreditation of only one company per lot, since the Notice “actually creates a selection process for an operator in a disguised way. This is because the Public Notice provides for a limitation of suitable companies that will be hired. Furthermore, it provides that companies that meet the requirements of the Notice and that file the request with greater advance will be hired, which has no legal support.”
Thus, the company "requires the granting of the preliminary injunction to determine the immediate suspension of the progress of Public Call Notice No. 001/2022, based on article 149 of the Internal Regulations of the TCE-MS, combined with article 56 of the Law Complementary nº 160/2012, and, if an administrative contract is signed, its immediate suspension, under penalty of irreversible violation of Law 8.666/93 and damage to public coffers."
In the understanding of Judge Vladimir Abreu da Silva, “accreditation is understood to be the system through which the Public Administration summons all those interested in providing services or providing goods in which, fulfilling the necessary requirements provided for in the public notice, they are hired by the body or entity to execute the object of the pact, when summoned.”
He continues: “Thus, in an accreditation, there is no limit on the number of contractors, in fact, the Public Administration is obliged to hire all those who meet the public notice requirements. Of course, the bidding requirements must guarantee equality of conditions among all interested parties able to contract at the price fixed by the Administration. It is possible when the infeasibility of establishing competition between those interested in contracting remains proven and when it is clear that the Administration's needs will be better met by contracting the largest number of service providers.”
According to the magistrate, “it is certain that in the accreditation, there is no presentation of proposals, since the amount to be paid has already been fixed by the Administration. In this way, there is no competition and winners, everyone is equally accredited.”
In the present case, the Public Notice, albeit in a transversal way, provided for the accreditation and, possibly, the hiring of only one company, since in item 1.2.3, II, there will only be "one permission per lot for every 2 (two) million inhabitants in the state territory."
“As the state of Mato Grosso do Sul has a little more than two million inhabitants, a kind of competition was established, as only one company will be hired. Add this to the fact that it will not be allowed to hire all those registered who meet the requirements, which is inherent to the Accreditation institute,” he defined.
When deciding to grant the preliminary injunction, Vladimir Abreu da Silva determined the suspension of Public Call Notice 001/2022 until the judgment on the merits by the Collegiate and gave a period of ten days for the state authorities to provide the necessary information, as well as determined that it be given to the State Attorney General's Office so that, if it wishes, it can enter the case.
Source: GMB
