Publication in Widely Circulated Newspapers and the Theory of Administrative Nullities: Limits to the Invalidation of Public Procurement Procedures under Brazilian Law No. 14.133/2021

Abstract

This article examines the legal consequences arising from the failure to publish a public procurement notice in a widely circulated newspaper, as required by Article 54, §1, of Brazilian Federal Law No. 14,133/2021, in light of the theory of administrative nullities. The research problem consists of determining whether non-compliance with this statutory requirement necessarily leads to the invalidation of the procurement procedure or whether it requires an assessment of the specific circumstances of each case. The study is based on the hypothesis that, although such non-compliance constitutes a legally relevant irregularity, it does not, by itself, result in the automatic nullity of the procurement process, requiring a demonstration of harm to the legal interests protected by the rule. The research adopts a qualitative approach, developed through bibliographical, legislative, and case-law review, employing the deductive method. Initially, the article examines the historical evolution of procurement publicity requirements and the treatment of the issue in legislation and in the jurisprudence of Brazilian Courts of Accounts. It then analyzes the doctrinal foundations of the principle of substantial compliance with procedural formalities, the principle of prejudice, legal certainty, and administrative good faith within the framework of administrative nullities. Finally, it investigates the limits of invalidating formalism in the application of Article 54 of Law No. 14,133/2021. The study concludes that the absence of publication in a widely circulated newspaper constitutes a relevant irregularity; however, its impact on the validity of the procurement procedure depends on a concrete assessment of its effects on transparency, competitiveness, and the public interest, thereby precluding solutions grounded in automatic nullity.