Technical and Price Evaluation or Noncompetitive Procurement? Brazil Law 14.133

Understand when Consulting Engineering under Brazilian Law 14,133 should follow competitive tendering with technique and price and when noncompetitive procurement under Article 74 may apply.

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When procuring Consulting Engineering under Brazilian Law 14,133/2021, the Administration must first answer a structural question: is competition feasible? If it is, the rule is competitive tendering and, when proposal technical quality is relevant, preferential use of the technique-and-price criterion. If competition is infeasible and the requirements of Article 74, III are met, procurement may proceed without competition.

AGU Normative Guidance 107/2026 made this reasoning even clearer. It recognizes that Consulting Engineering services falling under items “a”, “d” and “h” of Article 6, XVIII are specialized technical services of a predominantly intellectual nature, cannot be classified as common engineering services and therefore should not be procured through the Brazilian reverse-auction procedure. Competitive tendering is the appropriate competitive route, except in cases of noncompetitive procurement.

This means the correct decision is not simply to choose between “competitive tendering” and “direct procurement.” It is necessary to assess the nature of the service, importance of technical quality, comparability of proposals, market, recognized expertise, provider essentiality and feasibility of competition.

The First Decision Is Not Technique and Price Versus Noncompetitive Procurement

The issue is often presented as though the Administration had two equivalent options: conduct competitive tendering using technique and price or procure directly without competition. Legally, the sequence is different.

The feasibility of competition must be analyzed first.

If competition is feasible, the competitive procurement must be structured.
If competition is infeasible, the hypothesis under Article 74 may be assessed.
Within competitive tendering, the Administration must decide which evaluation criterion best represents the most advantageous proposal.

Technique and price is therefore not a “more bureaucratic” alternative to noncompetitive procurement, and noncompetitive procurement is not a simplified version of technique and price. They are responses to different legal situations.

Decision tree between competitive tendering, technical and price evaluation, and noncompetitive procurement in Consulting Engineering

What AGU Guidance 107/2026 Changed in Practice

Consulting Engineering should not be pushed into the reverse-auction procedure for procedural convenience. The intellectual nature of the object must guide the procurement procedure and evaluation criterion.

Understand the classification of specialized technical services

AGU Guidance 107/2026 did not create the Consulting Engineering category, but consolidated an important interpretation for its procurement under Law 14,133.

The guidance establishes three central points:

Consulting Engineering services associated with items “a”, “d” and “h” of Article 6, XVIII are specialized technical services of a predominantly intellectual nature;
these services cannot be classified as common engineering services for purposes of the reverse-auction procedure;
competitive tendering is the applicable procedure, with technique and price as the general rule when technical quality is relevant, except in cases of noncompetitive procurement.

In practice, this reinforces an important protection against high-intellectual-content procurements being treated as though they were standardized supplies.

Why the Reverse Auction Procedure Is Not the Appropriate Route for Consulting Engineering

Article 29 of Law 14,133 provides for the Brazilian reverse-auction procedure for objects whose performance and quality standards can be objectively defined by usual market specifications. Its sole paragraph expressly excludes specialized technical services of a predominantly intellectual nature.

In Consulting Engineering, service value normally depends on factors such as:

comparable experience;
ability to interpret the problem;
work methodology;
quality of the technical team;
multidisciplinary integration;
ability to anticipate risks;
depth of analyses;
maturity of acceptance criteria;
quality of the technical deliverables produced.

These attributes do not disappear merely because the Terms of Reference successfully establishes objective deliverables. Clear deliverables improve governance but do not automatically transform the work into a common service.

What the Technique-and-Price Criterion Is

Article 36 of Law 14,133 defines technique and price as an evaluation based on the highest score resulting from weighting technical scores and price.

Technical evaluation is not used to subjectively exclude undesirable proposals. Evaluation factors must be established in the tender documents and be sufficiently objective to allow transparent and auditable judgment.

The criterion should be used when the Preliminary Technical Study demonstrates that evaluation and weighting of technical quality among proposals that exceed minimum requirements are relevant to the Administration’s intended purposes.

For specialized technical services of a predominantly intellectual nature, the law provides that technique and price should be preferentially used.

When Technique and Price Makes Sense in Consulting Engineering

Technique and price is especially appropriate when competition is feasible but differences in proposal quality may materially affect the contract outcome.

Typical examples include:

Complex Multidisciplinary Designs

When different teams can propose different methodologies, coordination arrangements, design-integration strategies and technical approaches, the Administration may need to evaluate more than price.

Owner’s Engineering and Management

The ability to govern interfaces, anticipate risks, analyze documentation and support critical decisions depends strongly on team experience and methodology.

Technical Inspection of Significant Projects

High-complexity inspection is not limited to field presence. It requires the ability to interpret designs, specifications, measurements, quality, risks and contractual impacts.

Commissioning and QA/QC

Test planning, definition of criteria, evidence analysis and treatment of deviations can directly affect asset safety, performance and acceptance.

Strategic Studies and Diagnostics

In feasibility studies, master plans, due diligence and technical diagnostics, analysis quality directly influences investment and prioritization decisions.

What Can Be Technically Scored

The scoring model must reflect the object. Generic criteria copied from previous tender documents can create distortions.

Depending on justification in the ETP and relationship to the object, the Administration may evaluate:

company experience with comparable objects;
experience of key professionals;
methodology and work plan;
risk-management approach;
multidisciplinary coordination strategy;
governance and communication structure;
technical tools and resources when relevant;
past performance, when applicable under the law;
ability to produce and control technical documentation;
quality and internal-review criteria.

The criterion should reward what actually increases the probability that the contract will produce the expected result.

Technical Scoring Should Not Become an Artificial Barrier

Technique and price adds value only when the criteria genuinely distinguish capabilities relevant to the object. Scoring résumés without alignment or generic methodologies creates the appearance of technical evaluation, not technical selection.

Learn about Technical Review of Tender Documents and Attachments

Valuing technical quality does not authorize excessive, irrelevant or restrictive requirements.

There is a difference between technically qualifying the selection and creating tender documents that only one company can satisfy without justification.

The Administration should verify whether each criterion:

is related to the object;
usefully differentiates proposal quality;
can be demonstrated;
has a transparent scoring rule;
does not improperly duplicate qualification requirements;
does not create a restriction disproportionate to competition.

Technique and price works well only when the tender documents can translate quality into assessable criteria without replacing technical judgment with arbitrariness.

Technical Qualification and Technical Scoring Are Different Things

Qualification determines whether the bidder meets the minimum conditions to participate and perform the object.

Technical scoring compares the quality of proposals and qualifications that exceed that minimum when those differences are relevant to the outcome.

Confusing the two stages can produce poorly structured tender documents. Requiring at qualification everything that should merely be a scoring factor can restrict competition. Conversely, scoring criteria that represent indispensable minimum requirements can allow inadequate proposals to remain competitive.

The article Technical Qualification in Engineering Tenders examines this distinction in greater depth.

The Maximum Weight of the Technical Proposal

Law 14,133 establishes that, under technique-and-price evaluation, the technical proposal may receive a weighting of up to 70%.

This does not mean that 70% is automatically the correct weight for every Consulting Engineering procurement.

The weighting should reflect the risk of the object and the impact of technical quality on outcomes. A highly strategic study may justify a high technical weight. A more structured and comparable intellectual service may support a different balance.

The ETP should document why the selected weighting is appropriate.

When Lowest Price May Still Be Admissible

AGU Guidance 107/2026 recognizes technique and price as the general rule for Consulting Engineering, but allows lowest price when evaluation and weighting of proposal technical quality are not relevant to the Administration’s intended purposes.

This is an important point: intellectual nature does not mean an absolute requirement for technical scoring in every case.

If the object is sufficiently defined, minimum requirements can ensure the necessary quality and differences among proposals exceeding that threshold do not produce a materially relevant benefit, lowest price may be justifiable.

This conclusion must be demonstrated, not merely asserted.

When Competition Ceases to Be Useful

Noncompetitive procurement is not an exception based on prestige. It is a conclusion regarding the impossibility of competition, supported by evidence of recognized expertise and essentiality to the object.

See how to demonstrate impossibility of competition

Noncompetitive procurement begins to be considered when competition is infeasible.

Under Article 74, III, the TCU highlights three material requirements:

specialized technical service of a predominantly intellectual nature;
professional or company of recognized expertise;
demonstration that the work of that professional or company is essential and demonstrably appropriate to fully satisfy the object.

Impossibility may arise when the provider’s technique, experience and capability are so closely associated with the outcome that objective comparison among proposals becomes inadequate or useless.

There does not need to be only one company in the market. Impossibility under Article 74, III is not equivalent to commercial exclusivity.

Multiple Providers Do Not Automatically Prevent Noncompetitive Procurement

This is one of the most misunderstood points.

More than one company may be capable of performing a particular service, and the Administration may still conclude that competition cannot adequately compare the technical value each one offers for that specific problem.

The analysis should not ask only “how many companies do this?”

It should ask:

does the outcome depend significantly on the provider’s intellectual work?
are experience and methodology intrinsically linked to the final product?
is it possible to create objective competitive criteria without losing precisely the attributes that make the service appropriate?
is the selected recognized expertise essential to the object?

If the attributes can be usefully compared, competition remains feasible. If they cannot, noncompetitive procurement may be legally supportable, provided that the other requirements are demonstrated.

Singularity Is No Longer an Autonomous Requirement

Law 14,133 removed from Article 74, III the autonomous requirement of a “singular nature” that existed under the previous regime.

This did not create a generic authorization for direct procurement of consulting services. The focus shifted to concrete demonstration that the selected specialization is essential and that competition is not suitable for selecting the provider for that object.

The Administration remains required to justify why direct procurement is necessary.

How to Compare the Two Paths

Aspect	Competitive tendering with technique and price	Noncompetitive procurement
Competition	feasible	infeasible
Main legal basis	Articles 29 and 36	Articles 72 and 74
Selection	comparison among proposals	reasoned justification for selection of the provider
Technical quality	scored using objective criteria	demonstrated through recognized expertise and essentiality
Price	weighted in competition	justified through reliable references and reasonableness
Market	comparable competitors	multiple providers may exist, but comparison is inadequate
Process	tender documents, qualification, evaluation and contracting	documented and authorized direct-procurement process
Typical risk	poorly designed technical criteria	generic justification of impossibility

The Role of the Preliminary Technical Study

The ETP should be the starting point for the decision.

A mature analysis structure can follow this sequence:

define the need and expected outcomes;
characterize why the object is Consulting Engineering;
map alternative ways to meet the need;
assess the market and feasibility of competition;
identify relevant technical-quality attributes;
determine whether those attributes can be objectively compared;
if competition is feasible, define the procedure and evaluation criterion;
if competition is infeasible, structure the Article 74 analysis and Article 72 documentation.

This method reduces the risk of beginning the process with a preselected procedure and constructing a retrospective justification.

How to Demonstrate That Technique and Price Is Necessary

The justification should not be limited to the statement “this is a complex service.”

The ETP may demonstrate, for example, that differences in methodology or experience affect:

design quality;
reduction of interferences;
accuracy of quantities;
reliability of decisions;
asset performance;
risk of contract amendments;
quality of inspection;
ability to detect failures;
response time to technical problems;
quality of documentation and acceptance.

The clearer the relationship between technical quality and public outcome, the more defensible the technical weighting becomes.

How to Demonstrate That Noncompetitive Procurement Is Necessary

Noncompetitive procurement requires even more specific justification.

The Administration needs to connect three blocks of evidence:

Differentiated Characteristics of the Object

Which risks, interfaces, requirements or challenges make the service different from routine delivery?

Evidence of Recognized Expertise

Which experiences, studies, publications, organization, team or capabilities demonstrate recognition and alignment with the specific field?

Essentiality to Full Satisfaction

Why are these provider characteristics necessary to the outcome, and why can a conventional competitive process not adequately select that value?

The conclusion must arise from the intersection of these three blocks.

Reason for Selection Is Not the Same as Recognized Expertise

Even when recognized expertise has been demonstrated, the direct procurement process must explain why that contractor was selected among the potentially qualified providers.

The reason for selection should relate:

the specific need;
relevant experience;
relevant methodology or capability;
technical team;
performance track record;
availability and execution conditions;
fit with the scope;
elements supporting essentiality.

This document should not be a promotional piece about the company. It should be an administrative rationale based on verifiable evidence.

Price Justification Remains Mandatory

Noncompetitive procurement (inexigibilidade) does not mean freedom to set any price.

The Administration must demonstrate economic compatibility and reasonableness, observing Article 23 and the requirements of Article 72. When conventional comparison is not possible, similar procurements involving the same provider, invoices, prior contracts, or other reliable evidence may be used.

In Consulting Engineering, the comparison must account for scope, team, seniority, schedule, complexity, responsibility, mobilization, and deliverables. Nominal values without technical normalization may lead to incorrect conclusions.

The Mistake of Treating Lowest Price as Synonymous with Best Value

The lowest-priced proposal is not necessarily the most advantageous for intellectual services.

A poorly conceived design may generate change orders, incompatibilities, rework, and higher CAPEX. Technically weak inspection may allow improper execution that is detected only at acceptance. A superficial diagnosis may lead to the wrong investment decision.

Best value must consider the service’s effect on the life cycle of the main procurement, not merely the difference in consulting fees.

This does not authorize paying any price to a renowned firm. It allows the Administration to recognize that technical quality has measurable or managerially relevant economic value and should be considered in the selection strategy.

Consulting Engineering as Protection for Public Investment

In many procurements, consulting represents a fraction of the investment it helps plan, specify, inspect, or accept.

Its role may include:

reducing uncertainty before tendering;
improving designs and requirements;
strengthening budget and scope definition;
supporting technical bid evaluation;
controlling quality during execution;
recording evidence;
supporting decisions on change orders and claims;
structuring commissioning and acceptance.

For this reason, a procurement strategy based solely on lowest price may save on the intellectual service while increasing the risk of the much larger investment that service is intended to protect.

Cases Where Competitive Tendering with Technical and Price Evaluation Tends to Be More Appropriate

Competitive tendering tends to be preferable when:

there are multiple qualified providers;
the Administration can establish objective technical criteria;
methodologies can be compared;
experience can be scored without improper steering;
technical quality is relevant but does not depend on a specific provider;
there is sufficient time and conditions for a competitive process;
the market can provide reasonably comparable proposals.

In these situations, technical and price evaluation preserves competition while recognizing quality.

Cases Where Noncompetitive Procurement May Be Technically Defensible

Noncompetitive procurement (inexigibilidade) may be analyzed when:

the scope has differentiated characteristics requiring specific capabilities;
the result is strongly linked to the provider’s knowledge or experience;
recognized expertise can be demonstrated and is relevant;
that expertise is essential to fully satisfy the scope;
objective comparison among proposals is not useful or is technically inadequate;
the impracticability of competition can be demonstrated and documented.

None of these elements should be presumed merely because the service is called “Consulting Engineering”.

Practical Decision Matrix

Question	Competitive tendering / technical and price evaluation	Noncompetitive procurement (inexigibilidade)
Are there multiple capable providers?	generally yes	there may be several
Can proposals be compared objectively?	yes	not usefully for the specific case
Does technical quality matter?	yes and it can be scored	yes and it is linked to the selected expertise
Is there recognized expertise?	it may exist, but it is not the basis for the procurement route	it must be demonstrated under Article 74, III
Is a specific provider essential?	no	it must be demonstrated
Is there price competition?	yes	no; price is justified in the process
Key document	tender documents with technical criteria	reason for selection + price justification + rationale for impracticability of competition

How to Avoid a False Noncompetitive Procurement Case

A direct procurement becomes vulnerable when the Administration merely assembles generic statements such as “complex service”, “renowned company”, and “need for expertise”.

A robust process should answer objectively:

what the technical problem is;
which risks make the scope relevant;
which capabilities are required;
which evidence proves those capabilities;
why they are essential;
why competition cannot adequately select the provider;
why the price is reasonable;
how execution by the team that justified the procurement will be ensured.

How to Avoid False Competition

There is also risk at the opposite extreme: conducting a formally competitive tender that is incapable of selecting the required quality.

This happens when:

technical criteria are so generic that all proposals receive similar scores;
price weighting dominates a scope where quality is decisive;
the tender scores the number of certificates without relevance to the scope;
methodology is evaluated through standardized boilerplate;
key professionals are not effectively tied to execution;
acceptance criteria are weak;
the Administration discovers technical insufficiency only after contracting.

Effective competition is not merely receiving multiple proposals. It is creating conditions to objectively select the proposal that best serves the public interest.

Relationship with Recognized Expertise and Impracticability of Competition

The article Recognized Expertise under Brazil’s Law 14.133 examines how to organize evidence about the provider. Impracticability of Competition in Noncompetitive Procurement, in turn, addresses the reasoning that transforms this evidence and the characteristics of the scope into a legally defensible conclusion.

These concepts should not be conflated. Recognized expertise is a characteristic of the professional or company. Impracticability is a characteristic of the competitive situation. Noncompetitive procurement depends on the connection between both and the specific scope.

A3A Engenharia’s Role in Public Procurement

A Consulting Engineering firm interested in a procurement may provide technical documentation, references, certificates, résumés, technical publications, methodology, team information, work proposal, and price formation evidence.

It may also clarify scope, assumptions, deliverables, and execution conditions.

However, the decisions on procurement procedure, evaluation criterion, qualification under Article 74, reason for selection, and authorization of the procurement are the responsibility of the Administration, with participation from its technical, legal, and decision-making areas as required by the applicable process.

This separation helps prevent the administrative justification from being confused with commercial material from the potential contractor.

A Roadmap for the Administration to Choose the Appropriate Route

The decision can be organized into eight steps:

characterize the service and confirm its specialized intellectual nature;
define which outcomes need to be protected;
identify which technical attributes influence those outcomes;
research the market and available providers;
assess whether those attributes can be compared objectively;
if so, structure competitive tendering and justify the evaluation criterion;
if not, assess recognized expertise, essentiality, and impracticability of competition;
document price, reason for selection, responsibilities, and execution criteria.

This sequence makes the process technically traceable and facilitates internal and external oversight.

Final Considerations

Brazil’s Law 14.133 provides two legally coherent routes for procuring Consulting Engineering, but they start from different premises.

When competition is viable and technical quality can be compared through objective criteria, competitive tendering with technical and price evaluation is the natural instrument for recognizing knowledge, experience, and methodology without abandoning competition. When competition is impracticable and the Administration demonstrates a specialized technical service of a predominantly intellectual nature, recognized expertise, essentiality, and the inadequacy of objective comparison, noncompetitive procurement under Article 74, III may apply.

AGU Normative Guidance 107/2026 reinforces that the answer should not be reverse auction nor an artificial classification as a common service. The challenge is to choose, document, and govern the model that best protects the technical outcome and public investment.

Technical references

[1] BRAZIL. Law No. 14.133, of April 1, 2021. Public Procurement and Administrative Contracts Law. Articles 6, XVIII and XIX; 29; 36; 72; 74. Available at: https://www.planalto.gov.br/ccivil_03/_ato2019-2022/2021/lei/l14133.htm

[2] ADVOCACIA-GERAL DA UNIÃO. AGU Normative Guidance No. 107/2026. Consulting Engineering Services under Law No. 14.133/2021. Available at: https://www.gov.br/agu/pt-br/composicao/cgu/cgu/onsagu

[3] TRIBUNAL DE CONTAS DA UNIÃO. Specialized technical services of a predominantly intellectual nature with professionals or companies of recognized expertise. Procurement and Contracts. Available at: https://licitacoesecontratos.tcu.gov.br/5-10-1-3-servicos-tecnicos-especializados-de-natureza-predominantemente-intelectual-com-profissionais-ou-empresas-de-notoria-especializacao-inciso-iii/

Frequently asked questions

Should Consulting Engineering be procured through reverse auction?

Not when it is a specialized technical service of a predominantly intellectual nature. Article 29, sole paragraph, excludes these services from reverse auction, and AGU Normative Guidance 107/2026 expressly states that Consulting Engineering cannot be classified as a common service for this purpose.

When should technical and price evaluation be used for Consulting Engineering?

When competition is viable and the ETP demonstrates that differences in technical quality among proposals exceeding the minimum requirements are relevant to the intended outcomes. Article 36 provides for preferential use of this criterion for specialized technical services of a predominantly intellectual nature.

When can noncompetitive procurement apply to Consulting Engineering?

When competition is impracticable and the requirements of Article 74, III are demonstrated: a specialized technical service of a predominantly intellectual nature, recognized expertise, and essentiality of the professional’s or company’s work to fully satisfy the scope.

Can there be several companies in the market and still be a case for noncompetitive procurement?

Yes. Under Article 74, III, impracticability does not necessarily require exclusivity. It may arise from the inability to objectively and usefully compare intellectual capabilities intrinsically linked to the outcome, provided that the rationale is concrete.

Can lowest price be used for Consulting Engineering?

It may be admissible when the Administration demonstrates that evaluating and weighting technical quality among proposals is not relevant to the intended outcomes. AGU Normative Guidance 107/2026 treats technical and price evaluation as the general rule, not an absolute requirement in every case.

What is the difference between technical and price evaluation and noncompetitive procurement?

Technical and price evaluation assumes viable competition and compares proposals through objective quality and price criteria. Noncompetitive procurement assumes impracticable competition and requires a reasoned selection, recognized expertise, essentiality, and price justification.

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