Understand how to structure variable remuneration in construction and engineering services under Law 14,133, with targets, indicators, baseline, budget ceiling, and seven TCU precautions.
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Variable remuneration under Article 144 of Law No. 14,133/2021 allows part of the payment to be linked to contractor performance in construction, supply, and service contracts, including engineering services. The bonus may consider targets, quality standards, environmental sustainability criteria, and delivery deadlines previously defined in the tender documents and contract. The mechanism, however, only works when there is a technically mature baseline, measurable indicators, quantifiable benefit, and budget capacity to pay for additional performance.
The main risk is paying for “efficiency” that is not real. An incomplete design, an overly generous schedule, an easy target, or poorly defined measurement may create bonuses without effective gain for the Public Administration. For this reason, variable remuneration should not be treated as a generic motivational clause. It is an economic incentive-allocation mechanism that needs to be designed with the same discipline applied to estimating, the risk matrix, measurement criteria, and acceptance.
What variable remuneration is under Law 14,133
Variable remuneration depends on targets, verifiable criteria, measurement, and contractual governance. To place these seven precautions within the full cycle, see What the TCU Reviews in Construction and Engineering Services Procurement.
Article 144 authorizes the Public Administration to establish variable remuneration linked to contractor performance. The law identifies four main bases:
- targets;
- quality standards;
- environmental sustainability criteria;
- delivery deadlines.
Its use must be justified and respect the budget limit established for the procurement.
Paragraph 1 also provides a specific hypothesis in which payment may be adjusted as a percentage of the amount saved on a particular expense when the scope seeks to implement a rationalization process, subject to specific regulation.
The core idea is simple: part of the amount ceases to depend only on physical execution of the scope and becomes dependent on the performance achieved.
Variable remuneration is not “paying more because the contractor did well”
This wording is insufficient because it does not define what “doing well” means.
In engineering, performance needs to be converted into an observable variable. Schedule, availability, energy consumption, productivity, rework rate, service level, emissions, losses, reliability, quality of the delivered product, or cost reduction may be used — provided the contract determines how they will be measured.
Without objective definition, the clause becomes subjective and potentially unenforceable.
When addressing measurement and payment criteria, the TCU reinforces that parameters need to be defined in advance so remuneration can vary according to performance. The inspector should not invent the yardstick during execution.
The first decision is to separate the base obligation from the performance target
Every contract has a minimum level of obligation that must be fulfilled. Variable remuneration should apply to performance above or beyond that baseline, where this is the model adopted.
Example:
- base obligation: deliver the works within the contractual deadline and with the specified quality requirements;
- incentivized target: complete a defined critical milestone before the baseline date without reducing quality and without transferring additional cost to the Public Administration;
- bonus: a previously defined percentage if the gain is effectively demonstrated.
The target cannot replace an essential obligation.
If the contractor fails to meet a minimum contractual requirement, deductions, corrections, fines, or other contractual consequences may apply. If the contractor simply fails to achieve an additional incentive target, the typical consequence is not receiving the corresponding bonus — not being sanctioned for failing to achieve something above the mandatory level.
Variable remuneration and efficiency contracts are different legal mechanisms
Law No. 14,133/2021 defines an efficiency contract as one whose scope seeks to generate savings for the contracting authority by reducing current expenses and whose remuneration is set as a percentage of the savings generated.
Under the highest economic return award criterion, used exclusively for efficiency contracts, the bidder submits a work proposal and a price proposal linked to expected savings.
Variable remuneration under Article 144 is broader. It may exist in contracts whose primary purpose is not to reduce expenditure. The bonus may be linked to schedule, quality, sustainability, or another measurable performance result.
| Aspect | Variable remuneration — Article 144 | Efficiency contract |
| Scope | construction, service, or supply in general | generate savings in current expenditure |
| Basis for additional payment | targets, quality, sustainability, schedule | percentage of savings actually achieved |
| Mandatory award criterion | not necessarily | highest economic return |
| Financial savings | may be one of the metrics | central element of the model |
| Failure to achieve target | may mean no bonus | directly affects remuneration tied to savings |
Confusing the two models produces incoherent clauses.
The seven precautions for structuring variable remuneration
The TCU’s 2026 Guide to Cost Engineering in Public Works organizes the main points of attention. They can be translated into seven engineering and procurement controls.
1. The benefit needs to be proportional and quantifiable
The Public Administration needs to know why it is paying the bonus.
If the contractor receives an additional BRL 2 million for completing a particular stage earlier, what is the economic or operational benefit of that acceleration? Does it reduce rent? Avoid downtime? Allow earlier operation? Bring forward public revenue? Reduce inspection mobilization? Avoid financing costs?
The bonus amount needs a defensible relationship with the expected benefit.
A mechanism in which the Public Administration pays BRL 1 million to obtain an estimated BRL 100 thousand benefit is economically incoherent even if the target was achieved.
A calculation memorandum may structure:
- expected benefit;
- valuation method;
- bonus ceiling;
- gain-sharing percentage;
- sensitivity scenarios;
- justification of proportionality.
The benefit does not need to be purely financial
Some gains do not convert directly into cash but can be quantified or weighted.
Examples:
- reduced downtime of a critical asset;
- longer service life;
- reduced failures;
- lower water or energy consumption;
- reduced emissions;
- lower rework volume;
- improved service level;
- shorter delivery time for relevant public infrastructure.
In these cases, the Public Administration needs to justify how the benefit will be measured and why it deserves additional remuneration.
2. The design needs to be mature to avoid false efficiency
This is one of the most relevant risks.
If the estimate is overstated, the schedule contains artificial float, or the design contains clearly excessive quantities, the contractor may “beat” the target without producing any real gain.
Example: the tender estimates 18 months for an activity that normally requires 12. The contractor completes it in 14 months and receives an acceleration bonus. Formally, performance was superior. Technically, the baseline was poorly calibrated.
Variable remuneration then turns a planning error into a reward.
For this reason, before creating an incentive it is necessary to test the maturity of the reference:
- consistent basic design;
- estimate compatible with market conditions;
- technically sized schedule;
- explicit assumptions;
- relevant risks identified;
- compatible productivity;
- validated critical path;
- coordinated interfaces.
The article on iPMP and project maturity shows why baseline quality should be examined before bidding.
An easy target is not efficiency
A legitimate gain needs to result from better contractor performance, not from an error by the Public Administration.
This means separating:
- gain generated by contractor innovation;
- gain from superior productivity;
- gain from better planning;
- gain caused by a Public Administration scope change;
- apparent gain created by an inflated baseline.
Only the first groups should feed the incentive when consistent with the clause.
3. The bonus needs to fit within the budget limit
Law No. 14,133 requires variable remuneration to respect the budget limit set by the Public Administration.
This means the procurement estimate should consider the maximum-performance scenario that may generate additional payment.
If the Public Administration estimates the contract at BRL 100 million and defines a potential bonus of up to BRL 5 million, it cannot structure the tender so that the winning bid consumes the entire BRL 100 million and then discover that there is no budget appropriation to pay the incentive.
The model needs to separate:
- base price;
- variable remuneration ceiling;
- maximum procurement amount;
- budget source;
- payment condition.
The limit needs to be visible in the process so all bidders price under the same rule.
The estimate should test the maximum-bonus scenario
A good calculation memorandum considers at least three scenarios:
| Scenario | Situation | Amount |
| Base | contractual obligations met, without additional target | base price |
| Intermediate | part of the targets achieved | base price + partial bonus |
| Maximum | all eligible targets achieved | base price + variable ceiling |
The Public Administration needs to demonstrate that the maximum scenario remains within the approved limit.
4. Indicators must be objective and connected to the risk matrix
A target is only good when the contractor can influence the result.
If the bonus depends on an event controlled mainly by the Public Administration, an external utility, a third party, or a risk retained by the contracting authority, the incentive loses coherence.
Example: rewarding early completion while critical expropriations are the sole responsibility of the Public Administration creates a metric whose result depends on a factor the contractor does not control.
The risk matrix helps answer:
- who controls the cause;
- who can prevent the delay;
- who bears the event;
- which variable actually measures contractor performance.
The Risk Allocation Matrix in Engineering Contracts should therefore be read together with the incentive mechanism.
An indicator without a formula is not a payment criterion
The tender documents should specify:
- indicator name;
- unit;
- data source;
- frequency;
- baseline;
- target;
- tolerance;
- person responsible for measurement;
- rounding rule;
- treatment of missing data;
- calculation formula;
- remuneration ceiling;
- rules for force majeure events and Public Administration risks.
Terms such as “excellent performance,” “good quality,” or “efficient delivery” do not create an auditable criterion.
5. Integrated contracting requires extra caution
Under integrated contracting, the contractor has greater freedom to develop solutions. This may generate legitimate efficiency, but it also makes it harder to separate design gains from obligations already assumed.
If the procurement already transfers to the contractor the responsibility to develop an optimized solution, paying a bonus simply because the contractor found a more economical solution may remunerate the same obligation twice.
The question should be: is the incentivized result beyond the performance already included in the risk and normal obligation of the delivery model?
In integrated and semi-integrated contracting, the clause needs to map:
- obligations of means;
- obligations of result;
- technological freedom;
- performance baseline;
- risk assumed in the bid;
- additional gain eligible for bonus.
The article on obligations of means and result in engineering helps structure this boundary.
Contractually required innovation should not be rewarded twice
If the tender requires a defined level of efficiency and the bid already includes the cost of achieving it, meeting the requirement is not additional performance.
The bonus should reward something that exceeds the stated reference without compromising quality, safety, or minimum performance.
6. Every scope change needs to recalibrate the target
Targets are defined against a baseline. When the Public Administration changes scope, quantities, interfaces, schedule, or requirements, the baseline may cease to be valid.
Imagine a target for delivery 60 days early. During execution, the Public Administration adds a new package of services equivalent to 8% of the contract. Keeping the original target may make the incentive unachievable or distorted.
The clause needs to provide a recalibration procedure.
This procedure should state:
- which changes affect the indicator;
- who calculates the impact;
- which method will be used;
- when the new baseline takes effect;
- how history is preserved;
- how changes with no impact remain outside recalibration.
Without change control, variable remuneration becomes a source of disputes.
Event records are essential
To determine whether a particular change affected the target, it is necessary to know when it occurred and what consequence it produced.
Claim Management in engineering projects links change, causation, schedule, and the performance indicator.
In complex contracts, variable remuneration should use the same baseline governance applied to schedule and cost control.
7. Do not confuse variable remuneration with an efficiency contract
The distinction needs to appear in the Terms of Reference and draft contract.
In an efficiency contract, generated savings are the economic core of the procurement. Remuneration is structured around savings actually achieved, and evaluation uses the highest economic return criterion.
Under Article 144 variable remuneration, the scope may be conventional construction, an engineering service, a supply contract, or another object. The incentive simply adds a performance component to remuneration.
Mixing the regimes may create problems in evaluation, budgeting, and payment.
The Paragraph 1 hypothesis brings the two models closer but does not make them identical
Article 144, Paragraph 1 allows payment to be adjusted as a percentage of the amount saved when the scope seeks rationalization.
This provision brings the model economically closer to an efficiency contract, but it needs careful structuring and specific regulation. The mere existence of savings does not automatically turn every procurement with a bonus into a highest-economic-return competition.
The Public Administration needs to identify which legal model it is actually adopting.
Variable remuneration is not an IMR
The Result Measurement Instrument — IMR — is used to adjust payment to the service level delivered, frequently reducing the amount when performance falls below the contractual standard.
Variable remuneration may have a different logic: rewarding performance above the mandatory level.
The two mechanisms may coexist, but they should not overlap in a contradictory way.
Example:
- mandatory availability level: 98%;
- below 98%: adjustment or deduction according to the IMR;
- between 98% and 99.5%: base remuneration;
- above 99.5%, provided other criteria are met: bonus.
This architecture creates a floor, neutral band, and incentive band.
How to define a performance baseline
The baseline should represent what the Public Administration is already entitled to receive for the base price.
It may derive from:
- design and specifications;
- historical performance;
- technical standards;
- benchmarks from comparable assets;
- feasibility studies;
- reference schedule;
- estimate and productivity;
- existing service level.
The baseline should be ambitious enough to represent good procurement, but not artificially high to the point of making the bonus unattainable.
The target should be challenging but achievable
An impossible target does not motivate. A trivial target simply transfers money.
The design may use bands:
| Band | Result | Effect |
| below minimum | noncompliance | normal contractual treatment |
| minimum to reference | basic compliance | base remuneration |
| reference to target | partial superior performance | graduated bonus |
| target or above | maximum eligible performance | bonus up to the ceiling |
The payment function may be linear, stepped, or another justified curve.
A schedule bonus requires critical-path analysis
Accelerating an activity that is not on the critical path may not bring forward project delivery.
If the incentive is schedule-based, the Public Administration should measure the real effect on a relevant contractual milestone.
The bonus may consider:
- early project delivery;
- early release of a critical asset;
- completion of a phase that enables partial operation;
- actual reduction of critical duration.
It should not simply consider early progress of an isolated activity that does not change the completion date.
The Event Schedule in Public Works and the physical-financial schedule help structure verifiable milestones.
Quality bonuses need to avoid subjectivity
Quality is a broad concept. To become a payment metric, it needs to be converted into verifiable requirements.
Possible indicators:
- nonconformity rate;
- rework index;
- test performance;
- availability;
- reliability;
- defects per unit;
- failure rate during an observation period;
- energy performance;
- commissioning indicators.
A subjective score assigned by the inspector without detailed criteria should not determine a material bonus.
Sustainability also needs a baseline
Environmental targets may include reductions in emissions, energy consumption, water use, waste, or use of materials with defined attributes.
The challenge is proving additionality.
If the design already requires a particular efficiency level, complying with that requirement is not an extra gain. The incentive should apply to superior performance, provided it is technically compatible and measured using a methodology defined in advance.
The benefit should remain after payment
A poorly designed incentive may reward a temporary performance level that does not last.
Example: equipment operates below the target consumption during acceptance testing but rapidly degrades in operation.
The clause may require an observation period, moving average, repeat testing, or retention of part of the bonus until performance stability is confirmed.
This is especially relevant for electromechanical systems, automation, energy efficiency, and critical assets.
How to calculate the bonus
There is no single statutory formula.
Some possible structures:
Fixed amount per target
Each target has a predetermined amount.
Example:
- Target A: BRL 200 thousand;
- Target B: BRL 350 thousand;
- Target C: BRL 150 thousand.
Advantage: simplicity. Risk: it may not reflect the intensity of the gain.
Linear curve
The bonus grows proportionally to performance between the reference level and maximum target.
bonus = ceiling × performance factor
Advantage: smooths step changes. Risk: requires precise measurement.
Benefit sharing
The Public Administration shares with the contractor a portion of the economic benefit actually generated.
bonus = validated benefit × sharing percentage
Advantage: aligns incentive and gain. Risk: calculating the benefit can be complex.
Multi-criteria model
Several indicators receive weights, provided they do not allow improper offsetting of critical requirements.
Example: schedule 40%, quality 35%, sustainability 25%.
The contract should define whether excellent schedule performance may offset poor safety or quality results. In many cases, critical requirements should operate as a gate, not as a compensable weight.
Safety requirements should not be used as compensation currency
A contract should not allow early delivery to offset noncompliance with safety, standards-based performance, or minimum quality.
Critical indicators should be eligibility conditions.
Example: the bonus is eligible only if:
- there is no open critical nonconformity;
- all mandatory tests have passed;
- commissioning documentation is complete;
- safety requirements have been met.
After these gates, incentivized performance is calculated.
How to prevent indicator gaming
When remuneration depends on a metric, the contractor naturally optimizes behavior to maximize that metric. This is expected. The problem arises when the metric allows behavior that improves the indicator without improving the scope.
Examples of gaming:
- accelerating easy-to-measure activities while delaying critical interfaces;
- reducing inspections to lower recorded defect counts;
- classifying nonconformities more leniently;
- concentrating efficient operation only during the test period;
- deferring costs or maintenance until after bonus measurement.
The design should test how the indicator could be manipulated and create preventive controls.
Inspection needs to be able to audit the metric
The best indicator in the world is useless if the data are unreliable.
Inspection needs to know:
- who collects the data;
- which equipment measures them;
- which system stores them;
- how the data are protected;
- who validates them;
- how discrepancies are handled;
- which evidence enters the payment process.
In digital or automation contracts, logs, audit trails, system integration, and data retention may need to be specified.
Payment needs to be linked to the measurement cycle
The clause should state when the bonus is calculated.
It may be:
- by milestone;
- monthly;
- quarterly;
- at provisional acceptance;
- after an observation period;
- at final acceptance.
The frequency should correspond to the nature of the indicator.
A schedule bonus may be assessed at a milestone. An availability bonus may require an operational window. A durability bonus cannot be validated in a few hours.
Example: variable remuneration for early delivery
Consider a project with a contractual term of 24 months and an estimated economic benefit of BRL 500 thousand for each month that entry into operation is actually brought forward.
The Public Administration decides to share 20% of this benefit with the contractor, capped at four months.
- 1 month early: BRL 500 thousand benefit; BRL 100 thousand bonus;
- 2 months early: BRL 1 million benefit; BRL 200 thousand bonus;
- 4 months early: BRL 2 million benefit; BRL 400 thousand bonus;
- greater acceleration: ceiling remains BRL 400 thousand.
The example only works if the baseline schedule is realistic and if acceleration results from contractor performance, not scope reduction or a Public Administration change.
Example: quality with a commissioning gate
Imagine a critical system in which the Public Administration wants to reward superior availability.
The contract may establish:
- mandatory minimum availability: 98.0%;
- bonus begins at 99.0%;
- maximum bonus at 99.8%;
- observation period: 90 days;
- eligibility condition: zero critical nonconformities and full commissioning approved.
The payment curve is defined in the tender documents. The inspector merely applies the formula to recorded data.
Example: sustainability through consumption reduction
In a retrofit, the baseline may be the normalized average consumption of the asset before the intervention. The bonus may depend on additional savings beyond the minimum requirement.
If the contract already requires a 15% reduction, the bonus could start at 18% and reach the ceiling at 25%, provided operating conditions are comparable.
Climate, occupancy, load, and period need to be normalized to avoid attributing to the contractor savings caused by lower building use.
A scope change should suspend assessment when necessary
During a material contract change, it may be impossible to calculate the indicator fairly.
The clause may provide for temporary suspension of assessment until the baseline is recalibrated.
This is better than continuing to pay or deny bonuses against a reference that no longer exists.
The bonus should not reward a legal or standards requirement
Complying with technical standards, occupational safety, mandatory environmental requirements, or legal obligations is not extraordinary performance.
These items are the compliance floor.
Variable remuneration may incentivize performance above the floor, but it should not turn compliance with a legal obligation into an additional remunerable benefit.
How to treat Public Administration risk
If an event under the Public Administration’s responsibility prevents achievement of a target, the contract needs to state how the indicator will be adjusted.
Possibilities:
- exclude the affected period;
- recalibrate the schedule;
- adjust the baseline;
- suspend measurement;
- redefine the indicator denominator.
The method should be objective so each occurrence does not generate an ad hoc negotiation.
How to treat force majeure and neutral events
Events controlled by neither party may also affect performance.
The risk matrix should indicate whether the event:
- suspends the metric;
- changes the baseline;
- remains the contractor’s risk;
- is addressed through another mechanism.
Variable remuneration cannot contradict the matrix.
Law 13,303 has similar but not identical rules
Article 45 of Law No. 13,303/2016 also permits variable remuneration in construction and service contracts, including engineering services, based on targets, quality, sustainability, and schedule.
The State-Owned Companies Law requires compliance with the budget limit but does not reproduce in the same provision the express justification requirement found in Paragraph 2 of Article 144 of Law No. 14,133/2021.
This does not mean state-owned companies may adopt the mechanism without support. It only means the specific statutory wording is different and the process must follow its own regime.
The justification needs to exist before bidding
Under Law No. 14,133/2021, inserting a formula into the contract is not enough. The record needs to explain why variable remuneration is appropriate for the scope.
A justification memorandum should answer:
- which behavior is intended to be incentivized;
- which benefit will be obtained;
- why that benefit is not fully covered by the base price;
- how the target will be measured;
- what risk of false efficiency exists;
- what maximum amount will be paid;
- why the amount is proportional;
- how the Public Administration will ensure measurement.
This justification protects the model from merely decorative use.
The Terms of Reference need to describe the full model
A good variable-remuneration section in the Terms of Reference should contain:
- objective of the incentive;
- baseline;
- targets;
- indicators;
- formula;
- weights;
- eligibility gates;
- data sources;
- frequency;
- measurement governance;
- rule for scope changes;
- risk matrix;
- financial ceiling;
- payment method;
- challenge procedure;
- evidence record.
The Terms of Reference for Construction and Engineering Services service may incorporate this logic when the scope supports performance incentives.
The technical review of the Terms of Reference should test the metric before the tender
Indicators may look clear in text and fail when applied to examples.
Before bidding, it is useful to simulate scenarios:
- minimum performance;
- average performance;
- maximum performance;
- Public Administration risk event;
- scope change;
- missing data;
- indicator tie;
- critical nonconformity;
- partial acceleration.
A Technical Review of Terms of Reference may detect inconsistencies before they become contractual disputes.
Variable remuneration should align with the event schedule and measurement
In lump-sum construction contracts, base payment may be associated with completed events. The bonus should be a separate and transparent layer.
The contract needs to avoid confusing:
- value of the physical event;
- retentions;
- deductions;
- price adjustment;
- variable performance payment.
Each portion should have its own basis.
The Event Schedule in Public Works helps organize this separation.
Failure to achieve the bonus target is not necessarily a breach
This point deserves careful contractual drafting.
If the target is truly additional — above the base obligation — failing to achieve it simply means not obtaining variable remuneration.
Example:
- obligation: complete by November 30;
- incentivized target: complete by September 30;
- completion on November 20: contract performed on time, no bonus;
- completion on September 25: contract performed with incentivized performance, bonus eligible;
- completion on December 15: contractual delay, subject to contractual consequences.
Mixing these three levels turns an incentive into a disguised penalty.
An efficiency contract has a different consequence
In an efficiency contract, the estimated savings form part of the economic object itself. Law No. 14,133 provides specific rules when the contracted savings are not achieved.
This reinforces the need not to automatically import sanctions from efficiency contracts into an Article 144 performance bonus.
How to structure decision governance
The Public Administration may create a four-step flow:
- technical measurement of the indicator;
- validation by inspection;
- verification of gates and the risk matrix;
- calculation and authorization of payment.
In material contracts, independent review may be useful before paying a high-value bonus.
Seven tests before approving the clause
The team can perform a final review using seven questions:
- Is the additional benefit real and quantifiable?
- Is the baseline mature and free of artificial float?
- Is the maximum bonus within the budget?
- Does the indicator measure something the contractor controls?
- Does the delivery model already remunerate this gain in another way?
- Do scope changes have a recalibration rule?
- Is it clear that the model is not a disguised efficiency contract?
If any answer is negative, the clause needs to be redesigned.
How Engineering Consulting adds value to this design
Structuring variable remuneration requires integration among design, estimate, schedule, risks, measurement, indicators, and the draft contract.
Engineering Consulting can support the Public Administration on four fronts:
- validate baseline maturity;
- model indicators and formulas;
- simulate financial scenarios;
- produce documentation for the Terms of Reference, tender, and inspection.
Technical Planning for Engineering Procurement is especially relevant when the decision needs to be made before bidding.
Final considerations
Variable remuneration is an incentive tool, not a license to pay a subjective reward.
Article 144 allows the Public Administration to share part of the value generated by superior performance, but it requires justification and compliance with the budget limit. To work, the model needs to begin with a mature baseline and end with an auditable formula.
The seven precautions are interdependent: proportional benefit, mature design, compatible budget, objective indicator, attention to the integrated delivery model, change control, and distinction from the efficiency contract.
When these elements are clear, the incentive can stimulate schedule, quality, sustainability, and efficiency without weakening the contract’s technical accountability.
When they are not, the mechanism may produce the opposite result: bonuses for trivial targets, measurement disputes, payment without benefit, and disputes over facts that should have been defined in the tender documents.
The best clause is one that allows the inspector to apply the yardstick without renegotiating the yardstick after execution.
Technical references
[1] BRASIL. Lei nº 14.133, de 1º de abril de 2021. Lei de Licitações e Contratos Administrativos, especially Articles 39 and 144. Available at: [Planalto — Lei nº 14.133/2021](https://www.planalto.gov.br/ccivil_03/_ato2019-2022/2021/lei/l14133.htm).
[2] BRASIL. Lei nº 13.303, de 30 de junho de 2016. Legal framework for public companies and mixed-capital companies, Article 45. Available at: [Planalto — Lei nº 13.303/2016](https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2016/lei/l13303.htm).
[3] TRIBUNAL DE CONTAS DA UNIÃO. Licitações e Contratos: Orientações e Jurisprudência do TCU. Item 4.3.7 — Measurement and payment criteria. Updated Aug. 29, 2025. Available at: [TCU — Measurement and payment criteria](https://licitacoesecontratos.tcu.gov.br/4-3-7-criterios-de-medicao-e-de-pagamento-2/).
[4] TRIBUNAL DE CONTAS DA UNIÃO. Licitações e Contratos: Orientações e Jurisprudência do TCU. Item 3.4.6 — Highest economic return. Updated Aug. 29, 2025. Available at: [TCU — Highest economic return](https://licitacoesecontratos.tcu.gov.br/3-4-6-maior-retorno-economico/).
[5] TRIBUNAL DE CONTAS DA UNIÃO. Engenharia de Custos em Obras Públicas — Um guia de perguntas e respostas. Brasília: TCU, 2026. Item 5.1.47. Available at: [TCU — Infrastructure and publications](https://portal.tcu.gov.br/infraestrutura).
[6] BRASIL. Decreto nº 7.581, de 11 de outubro de 2011. Historical RDC regulation and parameters for justifying variable remuneration. Available at: [Planalto — Decreto nº 7.581/2011](https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2011/decreto/d7581compilado.htm).
Frequently asked questions
It is the possibility of linking part of the contractor’s remuneration to performance based on targets, quality, sustainability, or deadlines previously defined in the tender documents and contract.
Yes. Article 144 expressly applies to construction, supplies, and services, including engineering, provided its use is justified and respects the procurement budget limit.
No. An efficiency contract aims to generate savings in current expenses and uses the highest economic return criterion. Variable remuneration may apply to different contracts and link bonuses to schedule, quality, sustainability, or other targets.
If the target is additional to the base obligation, the normal consequence is simply not receiving the bonus. Sanctions remain applicable when minimum contractual obligations are breached, not merely because extra performance was not achieved.
The amount should be proportional to the expected benefit, respect the budget ceiling, and use a formula defined in advance. It may be fixed per target, graduated, linear, or based on benefit sharing.
Yes, provided acceleration produces a real benefit, is measured against a relevant milestone or critical path, and does not result from scope reduction or an error in the baseline schedule.
Design, estimate, and schedule need to be validated before bidding so the baseline represents normal performance and the additional target is genuinely superior.
The model should be defined in procurement documentation and reflected in the tender documents and contract, including targets, indicators, formula, data sources, ceiling, measurement method, and rules for scope changes.
Complementary technical materials
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- Terms of Reference for Construction and Engineering Services: scope, requirements, measurement, and acceptance
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