PROTAGONIST OR TARGET? THE LEGAL OPINION AND THE LIMITS OF LIABILITY UNDER THE NEW PUBLIC PROCUREMENT LAW

Abstract

This article analyzes, from a practical and doctrinal perspective, the legal opinion as a central instrument of preventive control and safeguard for the public lawyer, within the context of Law No. 14,133/2021. Faced with a scenario of increasing liability and the fear that generates the "blackout of the pens," this work aims to delineate the new duties of legal advisory services and the premises for a secure practice. The methodology consists of a bibliographic analysis, and a comparative documentary and jurisprudential analysis, delving into the understandings of the Federal Court of Accounts (TCU) and the Court of Accounts of the State of Paraná (TCE-PR). The study defines the contours of gross error, illustrating with concrete cases the conducts that lead to sanctions – such as omission, superficial analysis, and disregard for case law – and, in contrast, the situations that exempt the legal advisor from liability. It is concluded that a secure practice is based on the elaboration of a technically sound legal opinion that, beyond legality control, transparently records reasonable legal theses, risks, and reservations, thereby transferring the burden of the decision to the manager and consolidating the opinion as a tool for governance and efficiency.