THE BLACK BOX IN THE BIDDING DOCUMENT: LIMITS AND BOUNDARIES OF PRIOR AI REVIEW BY PUBLIC ADVOCACY AND BY ADVOCACY SPECIALIZED IN PUBLIC LAW

Abstract

This article analyzes the conditions of legal validity and the institutional limits of the prior legality review carried out by municipal Public Advisory Advocacy in procurements of Artificial Intelligence (AI) systems, in light of Law No. 14,133/2021 and the Law of Introduction to the Norms of Brazilian Law (LINDB), and also examines the complementary role of private lawyers specialized in Public Law, without replacing the competences of the Administration’s legal advisory body. It adopts a legal-dogmatic, critical-systematic and bibliographical methodology, with analysis of legislation, scholarship and selected decisions of the Brazilian Federal Supreme Court and the Superior Court of Justice, without empirical research. As a result, it proposes the concept of “Technological Due Process by design”, structured around three axes: contractual explainability and verifiability, prevention and monitoring of bias, and meaningful human oversight, with hybrid service channels where necessary. It concludes that legal opinions can act preventively in structuring the bidding document and the contract, without replacing technical assessment or administrative decision-making, provided that their requirements are legally grounded, proportionate to the risk and compatible with the object of the contract.