O princípio da legalidade estrita versus o formalismo moderado na Lei nº 14.133/2021 (Nova Lei de Licitações e Contratos Administrativos) : entre a segurança jurídica e a eficiência administrativa

Abstract

This paper examines the structural tension between the principle of strict legality and moderate formalism within the framework of Law No. 14,133/2021, the New Brazilian Public Procurement and Contracts Act (NLLCA). Drawing on bibliographic review and case law analysis from the Federal Court of Accounts (TCU) and the Judiciary, the research investigates how moderate formalism, codified in Article 12, Section III of the NLLCA, operates as an instrument to reconcile legal certainty and administrative efficiency in public contracting. The study finds that the evolution of legality toward administrative juridicity has expanded the normative parameters binding public administration to constitutional principles, conferring on moderate formalism the status of an autonomous principle. Jurisprudential analysis reveals four decisional phases of the TCU: construction (1992-2014), consolidation (2015-2020), adaptation (2021-2023), and deepening (2024-2025), culminating in innovations such as the functional equivalence theory of certificates and the snapshot theory. The conclusion is that moderate formalism does not undermine the procurement regime but rationalizes its controls, replacing the illusion of formal compliance with substantive results-oriented oversight, provided the constitutional limits of equality, qualified motivation, and prior planning are observed.