ACCOUNTABILITY OF PUBLIC OFFICIALS AND CONTRACTORS IN BIDDING PROCESSES AFTER THE LINDB: THE APPLICATION OF GROSS ERROR IN THE JURISPRUDENCE OF THE TCU AND ITS REFLECTIONS BETWEEN SANCTION AND REIMBURSEMENT

Abstract

This article analyzes liability in public procurement following the amendments introduced by Law No. 13,655/2018 to the Brazilian Law of Introduction to the Norms of Brazilian Law (LINDB), with emphasis on the interpretation of Article 28 by the Brazilian Federal Court of Accounts (TCU). The study examines the consolidation of gross error as a standard for personal liability, especially regarding the distinction between administrative sanctions and the duty to compensate damages to the public treasury. It is based on the premise that the legislative reform sought to mitigate the so-called “Fear-Based Administrative Law”, enhancing legal certainty and decision-making security in administrative action. The objective is to analyze how TCU case law has applied the concepts of intent and gross error, considering the real obstacles and difficulties faced in public management, as well as the limits between sanctioning liability and financial reparation. A qualitative methodology was adopted, with bibliographic and case law analysis, including recent decisions. The main conclusion indicates a tendency to consolidate gross error as equivalent to gross negligence, requiring a significant deviation from the expected standard of diligence, which reinforces the subjective nature of sanctions and defines liability attribution criteria, contributing to greater predictability and rationality in the control of public procurement.