A nulidade dos contratos na Lei n. 14.133/2021: aportes da nova Lei de Licitações e Contratos Administrativos a uma teoria das nulidades em construção

Abstract

The new Brazilian Law on Public Procurement (Law nº 14.133/2021) deals with the nullity of contracts in a specific chapter and introduces provisions that dispel the aprioristic notion that, facing an illegality that cannot be ruled out, the Public Administration must declare the nullity of the act, removing its effects ab initio. The new statute, therefore, not only imposes the task of understanding the content of the upcoming rules and the proposed solutions in the context of public procurement, but also demands their framing in a broader theory of nullities, in line with contemporary Administrative Law. The article explores this subject, beginning with the analysis of concepts relevant to the validity of legal transactions, in Private Law, and to the theory of nullities in Administrative Law. Then, the provisions on the nullity of administrative contracts are analyzed, comparing the normative provisions of Law nº 8.666/1993 and Law nº 14.133/2021. With this, the article tries to comprehend basic aspects of the legal regime of invalidity in the new Law on Public Procurement, such as the existence or not of different types of nullity, which would be classified as absolute and relative, and the available alternatives to overcome the legal defect, when necessary. In the end, it is confirmed the hypothesis that Law nº 14.133/2021, while dealing with the nullity of contracts, substantially modifies the legal treatment found in Law nº 8.666/1993, although the enforcement of the latter was already conditioned by general legislative parameters, such as those brought by Law nº 9.784/1999 and by Law nº 13.655/2018. Thus, it was found that the rules introduced by the new Law on Public Procurement not only influence the development of a theory of nullities, but also interact with current debates related to consequentialism and legal certainty.