Companies under judicial reorganization may participate in public bidding. This is provided that they demonstrate, in the qualification phase, that they have economic viability. Based on this understanding, the 1st Panel of the Superior Court of Justice (STJ) decided that, in the absence of legislative authorization, the automatic disqualification of companies subject to Law 11.101/2005 solely due to the failure to present a negative certificate of judicial reorganization is inappropriate.
According to the reporting justice, Justice Gurgel de Faria, even though the Judicial Reorganization Law replaced the figure of the composition with creditors (concordata) with the institutions of judicial and extrajudicial reorganization, article 31 of Law 8.666/1993 did not have its text amended to conform to the new system.
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Declaration of bankruptcy leads to the extinction of enforcement proceedings suspended during the judicial reorganization
Crisis in the company: Is Judicial Reorganization the best alternative?
For the reporting justice, even for companies under judicial reorganization, there is provision for the possibility of contracting with the public authorities. This, as a general rule, presupposes prior participation in bidding processes.
Companies under judicial reorganization seek to overcome their situation
According to Gurgel de Faria, the main objective of the legislation is to enable the debtor to overcome the situation of economic and financial crisis. This is in order to allow the maintenance of the producing source, the employment of workers and the interests of creditors. Thus promoting the preservation of the company, its social function and the stimulus to economic activity.
The justice highlighted that the case law of the STJ has been oriented in the sense that the Administration cannot carry out an extensive or restrictive interpretation of rights when the law does not so provide expressly.
“The systematic interpretation of the provisions of Laws 8.666/1993 and 11.101/2005 leads to the conclusion that a balanced weighing of the principles contained therein is possible. For the preservation of the company, its social function and the stimulus to economic activity also serve, in the final analysis, the interest of the community. Since the maintenance of the producing source, the jobs and the interests of the creditors is sought,” the justice concluded.
Source: STJ
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