ARTICLE 155, ITEM X, OF LAW 14.133/2021 AS A SYSTEMATIC OPENING NORM: "BEHAVIOR IN AN IMPROPER MANNER" AND "FRAUD OF ANY NATURE" FROM THE PERSPECTIVE OF INTERPRETATION IN ACCORDANCE WITH THE CONSTITUTION

Abstract

This article analyzes item X of article 155 of Law No. 14.133/2021, which classifies as an administrative offense "behaving improperly or committing fraud of any kind." The study begins with the observation of the high conceptual indeterminacy of the provision, which raises doubts about its compatibility with the constitutional principles of due process, legality, legal certainty, and impartiality. The central objective is to propose an interpretation in accordance with the Constitution, allowing the legitimate application of the norm without compromising fundamental guarantees. To this end, a dogmatic-analytical methodology is adopted, based on current legislation, specialized doctrine, and jurisprudence. The research concludes that the provision should be understood as a systematically open norm, whose application depends on demonstrating a violation of specific duties or prohibitions provided for in other legal norms. The hermeneutical proposal suggests objective interpretative criteria, such as connecting the conduct to the bidding or contractual context, observing constitutional principles, and considering the practical consequences of the sanction, in accordance with the Law of Introduction to the Norms of Brazilian Law. In this way, it seeks to mitigate the risks of arbitrariness and ensure the predictability and rationality of the administrative sanctioning power.