LIABILITY OF PUBLIC OFFICIALS AND CONTRACTORS IN BIDDING PROCESSES: AN ANALYSIS OF CASE LAW FOLLOWING THE INTRODUCTORY LAW TO THE BRAZILIAN CIVIL CODE (ARTICLE 28)

Abstract

This article analyzes the liability regime for public agents and contractors within the scope of public bidding and administrative contracts, from the perspective of the innovations introduced by Law No. 13,655/2018, which amended the Law of Introduction to the Rules of Brazilian Law (LINDB). The central focus lies on Article 28 of the LINDB, which conditioned the personal liability of public agents to the existence of intent (dolus) or gross error, establishing a new paradigm of legal certainty against the so-called "Administrative Law of Fear." Through bibliographic research and judicial analysis, with emphasis on the rulings of the Federal Court of Accounts (TCU), this study examines how the concept of gross error has been interpreted to distinguish excusable failures from serious negligence. Additionally, it discusses the application of these institutes under Law No. 14,133/2021, evaluating the balance between the need for probity control and the protection of proactive public managers. It concludes that the LINDB imposes on control bodies a contextualized analysis of the real difficulties of management, requiring a justification that goes beyond the mere verification of formal irregularities to characterize the duty to indemnify or sanction.