The expansion of electronic bidding procedures has profoundly transformed the way companies interact with Public Administration. This model, now predominant in public procurement, has brought clear gains in efficiency, competitiveness, and nationwide reach. At the same time, however, it has introduced a new layer of legal complexity, particularly in criminal law.
One of the most frequent questions arising in this context appears simple at first glance: where is a crime allegedly committed in an electronic bidding procedure supposed to be tried? In other words, when all relevant acts take place digitally, does territorial jurisdiction still matter for criminal purposes?
The answer given by Brazil’s higher courts is relatively clear. In practice, however, this understanding is not always observed from the outset of criminal proceedings.
From administrative procedure to criminal risk
A significant portion of criminal disputes related to public procurement does not necessarily stem from classic allegations of bid rigging or procurement fraud. Many cases are built around ancillary or related conduct, such as the alleged submission of false documents, inaccurate statements, or technical information challenged by competitors.
In electronic bidding procedures, these acts are carried out entirely online. Proposals are submitted through official platforms, documents are uploaded digitally, and declarations are completed and sent from the company’s headquarters or other locations. Even so, criminal investigations and proceedings often begin in the jurisdiction where the contracting public authority is located, under the assumption that this is where the core of the procedure lies.
That assumption, however, is not supported by consolidated case law.
Criminal jurisdiction rules in a digital environment
Brazilian criminal procedure law adopts, as a general rule, the place where the offense is consummated as the criterion for territorial jurisdiction. In traditional crimes, identifying that place is usually straightforward. In a digital environment, however, concepts such as “delivery” or “submission” must be reinterpreted.
In electronic bidding procedures, there is no physical delivery of documents or in-person participation. The relevant act occurs when the document is effectively completed and transmitted through the official electronic system. At that moment, the last act of execution of the alleged offense takes place.
The key question, therefore, is not where the public authority is located, but where the digital act that underlies the criminal accusation was performed.
The Brazilian Superior Court of Justice’s position and its consolidation
The Brazilian Superior Court of Justice addressed this issue directly in 2015, in Conflict of Jurisdiction No. 125.014/DF, decided by its Third Section. The case involved the alleged submission of false declarations in an electronic bidding procedure. The Court held that, in virtual procurement procedures, the offense is consummated at the place where the electronic document is completed and transmitted, since that is where the final acts of execution occur.
The Court rejected the idea that jurisdiction should automatically lie with the seat of the contracting authority or the formal location of the bidding process, emphasizing that electronic procedures require a functional interpretation of the rule set out in Article 70 of the Brazilian Code of Criminal Procedure.
This understanding did not remain isolated. In Conflict of Jurisdiction No. 204.647/MG, decided in 2024, the Court once again affirmed that when a criminal accusation is based on the submission of false documents in an electronic bidding procedure, the offense is consummated at the place from which the electronic submission originated.
Likewise, Conflict of Jurisdiction No. 206.302/SP, also decided in 2024, reaffirmed that in cases involving fraud or the use of false documents in virtual procurement procedures, jurisdiction lies where the document was completed and transmitted.
What emerges from this line of decisions is a clear and stable rule: the virtualization of public procurement does not eliminate territorial jurisdiction in criminal law, but rather shifts its point of reference to the place where the relevant digital act is performed.
When courts with no jurisdiction still hear the case
Despite this consolidated jurisprudence, it is not uncommon for investigations and criminal proceedings to begin before courts that lack territorial jurisdiction. Assigning jurisdiction based on the location of the public authority or the formal site of the bidding process remains a frequent practice, even in cases clearly structured around digital acts.
For the accused, this mistake may cause significant harm. Proceedings before an improper forum affect costs, logistics, defense strategy, and, most importantly, the validity of procedural acts. Jurisdiction is therefore not a secondary technical issue, but one that must be carefully examined from the earliest stages of criminal proceedings.
The proper moment to challenge jurisdiction and its effects
Brazilian criminal procedure establishes specific procedural moments for challenging territorial jurisdiction. As a rule, relative incompetence must be raised at the appropriate time, otherwise jurisdiction may be deemed extended.
This means that inaction may consolidate the authority of a court that should not, in principle, hear the case. Conversely, when lack of jurisdiction is timely raised, the course of the proceedings may be corrected, with direct effects on the validity of the acts already performed.
Depending on the circumstances, recognition of lack of jurisdiction may require ratification of prior decisions or, in some cases, lead to their invalidation, particularly where procedural prejudice is demonstrated. In all cases, the issue has concrete consequences for the structure and progress of the proceedings.
Why this matters to companies
For companies that do business with the Public Administration, understanding this framework is essential. The digitalization of procurement has expanded the territorial reach of administrative relations, but it has not eliminated the legal limits of criminal jurisdiction.
Knowing where a dispute may be tried, when and how to challenge jurisdiction, and what effects this discussion may have on procedural validity is an integral part of responsible risk management. In an increasingly technical and judicialized environment, attention to these aspects may prevent losses that go far beyond the merits of the accusation.
Final considerations
Electronic bidding procedures have become central to public procurement, but they have also introduced new challenges to criminal and procedural law. The Brazilian Superior Court of Justice has provided consistent guidance on territorial jurisdiction in digital environments. The current challenge is not the absence of rules, but their correct application from the very beginning of proceedings.
For companies, the lesson is straightforward: in criminal matters, territory still exists. Only the point from which it must be assessed has changed.
