{"id":24408,"date":"2025-12-18T10:28:41","date_gmt":"2025-12-18T13:28:41","guid":{"rendered":"https:\/\/justen.com.br\/artigo_pdf\/how-to-attest-to-the-effort-in-complying-with-the-job-reserve-for-people-with-disabilities-pwd-and-for-rehabilitated-individuals-under-social-security\/"},"modified":"2026-02-05T15:30:15","modified_gmt":"2026-02-05T18:30:15","slug":"how-to-attest-to-the-effort-in-complying-with-the-job-reserve-for-people-with-disabilities-pwd-and-for-rehabilitated-individuals-under-social-security","status":"publish","type":"artigo_pdf","link":"https:\/\/justen.com.br\/en\/artigo_pdf\/how-to-attest-to-the-effort-in-complying-with-the-job-reserve-for-people-with-disabilities-pwd-and-for-rehabilitated-individuals-under-social-security\/","title":{"rendered":"HOW TO ATTEST TO THE \u201cEFFORT\u201d IN COMPLYING WITH THE JOB RESERVE FOR PEOPLE WITH DISABILITIES (PWD) AND FOR REHABILITATED INDIVIDUALS UNDER SOCIAL SECURITY?"},"content":{"rendered":"\n

1.<\/strong> Introduction; 2.<\/strong> The consolidation of PWD quota compliance in public procurement; 3.<\/strong> Addressing PWD quotas in the bidding process; 3.1<\/strong> Challenges to self-declaration during the bidding process; 3.2<\/strong> The Labor Court’s position on the probative value of CCRL; 3.3<\/strong> The TCU’s understanding: flexibility of the CCRL as proof of disqualification; 4.<\/strong> Evaluating the bidder’s \u201ceffective effort\u201d; 5.<\/strong> Progress or setback? 6.<\/strong> The possible (and desirable) technical solution to the controversy; 7.<\/strong> Conclusion.<\/p>\n\n

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1. Introduction<\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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December 3rd marked the International Day of Persons with Disabilities. In addition to the symbolism, the date raises a deep reflection in order to improve social inclusion policies for people with disabilities. The Brazilian legal system is severely committed to adopting policies for the inclusion of people with disabilities, especially in the labor market. <\/p>\n\n

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The Constitution provides in its art. 6\u00ba, item XXXI, the \u201cprohibition of any discrimination regarding salary and admission criteria for workers with disabilities<\/em>\u201d. Law 13.146 (Statute of Persons with Disabilities) establishes that \u201cpeople with disabilities have the right to work of their free choice and acceptance, in an accessible and inclusive environment, in equal opportunities with other people<\/em>\u201d (art. 34), establishing as \u201cthe primary purpose of public policies on work and employment to promote and guarantee conditions of access and permanence of people with disabilities in the field of work<\/em>\u201d (art. 35). <\/p>\n\n

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The main policy for the inclusion of people with disabilities in the labor market is the quota policy provided for in art. 93 of Law 8.213. This policy sets minimum percentages for the offer of jobs exclusively for workers with disabilities and for rehabilitated individuals under Social Security. <\/p>\n\n

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In addition to the effective inspection promoted by the Ministry of Labor and Employment through the Labor Inspectors, the effective compliance with the quota policy gains an additional enforcement<\/em> when the company operates in the public procurement market: compliance with the quota policy as a qualification requirement.<\/p>\n\n

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The social relevance of this policy in the context of public procurement is unquestionable. The state’s role in inducing socially desirable behaviors in the market is commendable, especially when such practices materialize the provision of fundamental rights and strengthen the dignity of the human person. Despite this relevance, the provision of job reservation for people with disabilities (PWD) and rehabilitated individuals under Social Security, specifically as a qualification requirement, has raised several practical dilemmas. <\/p>\n\n

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The topic was the subject of reflection in the article by Rodrigo Goulart de Freitas Pombo, published in Edition 176<\/u><\/a>, in which he pondered on these dilemmas and the solutions created by jurisprudence.<\/p>\n\n

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This article, on the other hand, has a more modest purpose and seeks to highlight the means of proving the bidder’s \u201ceffort\u201d in complying with the job reserve for people with disabilities (PWD) and rehabilitated individuals under Social Security as a qualification requirement. <\/p>\n\n

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2. The consolidation of PWD quota compliance in public procurement<\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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The linking of the quota policy with the public procurement market occurred through the modifications proposed by Law 13.146 (Statute of Persons with Disabilities) in Law 8.666. <\/p>\n\n

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Among the modifications, the job reservation for people with disabilities or for rehabilitated individuals under Social Security was established as a tie-breaking criterion (art. 3\u00ba, \u00a72\u00ba, item V, of Law 8.666) or for the establishment of a margin of preference (art. 3\u00ba, \u00a75\u00ba, of Law 8.666).<\/p>\n\n

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Thus: \u201cin practice, there are calls for bids based on Law 8.666 and Law 10.520 that provided for compliance with the job reserve for PWD as a qualification requirement, not as a tie-breaking criterion or for the purpose of establishing a margin of preference. It is considered that a requirement in these terms may be subject to questioning, for various legal reasons \u2013 including the express limits provided for in Law 8.666\u201d (POMBO, Rodrigo Goulart de Freitas. The job reservation for people with disabilities (PWD) and rehabilitated individuals under social security as a qualification requirement \u2013 between Law 8.666\/1993 and Law 14.133\/2021. Justen, Pereira, Oliveira e Talamini Newsletter<\/em>, Curitiba, n. 176, October 2021, available at http:\/\/www.justen.com.br, accessed on 15.12.2025). <\/p>\n\n

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A plausible explanation for the establishment of the job reserve for people with disabilities and rehabilitated individuals under social security as a qualification requirement, even without a normative basis, may lie in the \u201cpsychological\u201d effect generated by the alteration promoted by the Statute of Persons with Disabilities in the Law of Administrative Improbity. <\/p>\n\n

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Law 13.146 amended art. 11\u00ba, item XI, of Law 8.429, now classifying as an act of administrative improbity \u201cfailure to comply with the requirement of accessibility requirements provided for in the legislation<\/em>\u201d. It cannot be denied that the fear of incurring an act of improbity for non-compliance with the \u201crequirement of accessibility requirements provided for in the legislation\u201d has stimulated managers to adopt administrative practices that went beyond what was required by the legislation, such as the establishment of compliance with this quota policy as a qualification requirement. <\/p>\n\n

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3. Addressing PWD quotas in the bidding process <\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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The express provision contained in art. 63, item IV, of Law 14.133 settled the doubts about the legal basis for the requirement. It was expressly required as a qualification requirement the presentation of a declaration \u201cthat it complies with the requirements of job reservation for people with disabilities and for rehabilitated individuals under Social Security<\/em>\u201d. <\/p>\n\n

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3.1 Challenges to self-declaration during the bidding process<\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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The requirement imposed on the bidder is the presentation of a self-declaration. The main problem related to the topic arises when self-declarations are challenged during the bidding process. <\/p>\n\n

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The main element of challenge is the contrast of the self-declaration with the information contained in the Certificate of Compliance with the Legal Reserve (CCRL), a public document that indicates the number of employees hired in accordance with the quota policy.<\/p>\n\n

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In cases where the CCRL issued in the name of the bidder registers a smaller number of employees benefiting from the quota policy, the self-declaration provided by the bidder tends to be challenged for apparently contrasting with reality, being considered the provision of a false declaration in bidding processes.<\/p>\n\n

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Challenges in this sense tend to lead to the bidder’s disqualification and, additionally, give rise to the initiation of a sanctioning process to investigate the provision of a false declaration in a bidding process \u2013 a practice disapproved of by art. art. 155, item VIII, of Law 14.133 and punishable with a penalty of ineligibility (156, \u00a75\u00ba, of Law 14.133). <\/p>\n\n

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3.2 The Labor Court’s position on the probative value of CCRL<\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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The Labor Court has consolidated the understanding that the registration in the CCRL of a smaller number of employees with disabilities or rehabilitated individuals under Social Security does not imply the automatic liability of the employer.<\/p>\n\n

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The dominant understanding recognizes that \u201cthe employer has the burden of complying with the requirements of art. 93 of Law 8.213\/91, but also of dismissing its responsibility for the failure to hire people with disabilities, due to the efforts demonstrably made<\/em>\u201d (TST – RR: 10023645720165020204, 4th Panel, rapporteur Min. Maria Cristina Irigoyen Peduzzi, j. 07.06.2022).<\/p>\n\n

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In other words, the mere information contained in the CCRL, eventually registering a smaller number of quota workers, does not equate to the automatic non-compliance with art. 93 of Law 8.213. It is necessary to evaluate the employer’s effort to fill the vacancies reserved for PWD and for rehabilitated individuals under Social Security. <\/p>\n\n

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This effort must be consistent and aimed at effectively filling the vacancies. According to jurisprudence, \u201cthe company is only exempt from the obligation to comply with the quota if it demonstrates, robustly, that it adopted all measures within its reach to fill the vacancies, mere generic offers not being sufficient<\/em>\u201d (TRT-14 – ROT: 00007258620245140404, 2nd Panel, rapporteur Judge FRANCISCO JOSE PINHEIRO CRUZ, j. 29.07.2025). <\/p>\n\n

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3.3 The TCU’s understanding: flexibility of the CCRL as proof of disqualification<\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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The flexibility promoted by the Labor Court regarding the CCLR as proof of non-compliance with the legal quota has been incorporated into the context of bidding processes, according to the TCU’s jurisprudence.<\/p>\n\n

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The paradigm precedent is Accordance 523\/2025-P, issued in a representation that requested the disqualification of a bidder due to a negative certificate issued by the MTE. The automatic disqualification was rejected, establishing the understanding that \u201cthe veracity of the bidder’s declaration regarding compliance with the requirements for job reservation as per art. 63, item IV, of Law 14.133\/2021 may, when necessary, ex officio or upon request, be proven by means of a certificate issued by the Ministry of Labor and Employment (MTE) or even by other means of proof, such as extracts of data registered in the e-Social<\/u>\u201d<\/em> (Accordance 523\/2025, Plenary, rapporteur Min. Jorge Oliveira, j. 12.03.2025). <\/p>\n\n

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The establishment of the duty to verify \u201cother means of proof\u201d arose from the finding that \u201cthe MTE certificate aims to attest to a situation with an inherent dynamic character, due to the constant changes in quantities resulting from admissions and dismissals and, consequently, from the classification in the percentage ranges required by law\u201d<\/em> (Idem). Such dynamism imposes \u201cthat space be opened for the company that provided the declaration of compliance with the item in question to gather evidence of the veracity of its declaration<\/em>\u201d (Ibidem). <\/p>\n\n

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From this decision, therefore, the TCU’s jurisprudence aligned with the decisions of the Labor Court and began to emphasize the bidder’s effort in complying with the rule \u2013 and not merely the negative record materialized in a certificate issued by the MTE. <\/p>\n\n

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See other TCU precedents that reinforce the application of this understanding and the consolidation of a dominant jurisprudence:<\/p>\n\n

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– The analysis of any violation of the job reserve for PWD, as a qualification requirement, must require more than the exclusive examination of the certificate issued by the MTE (Accordance 2.209\/2025, Plenary, rapporteur Min. Benjamin Zymler, j. 24.09.2025).– From this, it can be said that it is up to the Administration, when faced with a bidder’s declaration affirming compliance with the legal quota that, in turn, is challenged by a certificate from the MTE attesting to the contrary, to investigate the participant in the bidding process so that they clarify the situation. Both the dynamic character that permeates the issue, concerning constant changes in quantities resulting from admissions and dismissals, and any difficulty in filling the quotas, provided they are evidenced, are plausible justifications to dismiss the disqualification. After all, such aspects will be inspected during the contractual execution, which may lead to the application of sanctions and even to the contractual termination, if the contracting party dares to fail to comply with its duties (Accordance 1.930\/2025, Plenary, rapporteur Min. Jorge Oliveira, j. 20.08.2025). <\/p>\n\n

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4. Evaluating the \u201ceffective effort\u201d of the bidder<\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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The TCU’s jurisprudence reveals that the deconstruction of the self-declaration provided by the bidder demands a complex and exhaustive evaluation of the effort dedicated to filling the quotas. The mere presentation of a CCRL indicating fewer PWD employees or rehabilitated individuals under Social Security does not invalidate the content of the declaration and cannot lead to the bidder’s disqualification. <\/p>\n\n

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If the allegation of falsehood invokes only the CCRL as an element of corroboration of the alleged falsehood, strictly speaking, the challenge should not even be considered. After all, if the CCRL does not prove the bidder’s effort in making vacancies available and only the absence of effort can constitute non-compliance with the legislation, any allegation based exclusively on the CCRL must be summarily rejected. <\/p>\n\n

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If there are other elements indicating the probable non-compliance with the legislation, due diligence must be initiated and the presentation of evidence of the bidder’s effort in complying with the legislation must be allowed. The question is knowing which documents corroborate the aforementioned \u201ceffort\u201d. <\/p>\n\n

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In the judgment of ROT00012123620235090661, the Judiciary recognized the following documented practices as indicative of the employer’s effort: (i) the publication of vacancies in newspapers; (ii) the advertisement of vacancies on the Worker’s Portal; (iii) the registration of vacancies with worker agencies, and (iv) the request for workers from the entity assisting people with disabilities. <\/p>\n\n

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In this same precedent, it was recognized that \u201cif the result of this is fruitless because there are no interested parties in such jobs, then it cannot be penalized with the issuance of an infraction notice<\/em>\u201d (TRT-9, ROT00012123620235090661, 6th Panel, rapporteur Judge Paulo Ricardo Pozzolo, j. 02.10.2024).<\/p>\n\n

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Therefore, if the bidder presents supporting documents of practices of this nature, their challenge regarding their qualification must be rejected.<\/p>\n\n

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5. Progress or setback?<\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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The TCU’s position has raised criticism for the possible \u201cflexibilization\u201d of the requirement in complying with the job reserve for PWD and for rehabilitated individuals under Social Security (see<\/u><\/a>).<\/p>\n\n

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However, the recent TCU precedents do not indicate the flexibilization of legal requirements, nor do they represent a setback in the jurisprudence on the matter.<\/p>\n\n

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The aforementioned quota policy established that the evaluation of qualification would consider the bidder’s self-declaration. The TCU precedents do not interfere in this dynamic. The self-declaration prevails. The only exception built by the jurisprudence is that the mere presentation of the CCRL does not invalidate the self-declaration. <\/p>\n\n

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Any finding of non-compliance with the legislation, provided that it is supported by other corroborating elements, must be severely curbed. The TCU’s jurisprudence is not compatible with impunity. <\/p>\n\n

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6. The possible (and desirable) technical solution to the controversy<\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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The most coherent solution may be the alteration in the procedures for issuing the CCRL itself. The issuance of the document is governed by Ordinance MTE 547\/2025, a rule that does not provide for any margin or mechanism for proving the \u201ceffort\u201d in complying with the job reserve for PWD and for rehabilitated individuals under Social Security. <\/p>\n\n

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A desirable improvement consists of enabling the indication not only of the number of quota employees hired, but also of the employer’s institutional campaigns aimed at making the vacancies available. This would be evidence of the employer’s effective effort, which would facilitate not only the use of the CCRL in bidding processes, but would also allow such information to avoid the issuance of an infraction notice by the MTE. <\/p>\n\n

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A similar solution occurred regarding labor debt certificates. Law 12.440, which established the \u201cNegative Certificate of Labor Debts (CDNT)\u201d, amended art. 27 of Law 8.666 to require labor regularity as a qualification requirement. The requirement only proved effective when the system used for issuing the aforementioned certificates began to admit positive certificates, but with the effect of negative ones, precisely to exempt labor debts guaranteed by seizure or whose enforceability has been suspended. <\/p>\n\n

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7. Conclusion<\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/strong><\/h4>\n\n
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The job reserve for people with disabilities (PWD) and rehabilitated individuals under Social Security represents a fundamental advance in promoting social inclusion and strengthening fundamental rights in the Brazilian labor market. The legislative and jurisprudential evolution, especially with the alignment between the TCU and the Labor Court, demonstrates that the focus should be on the bidder’s effective effort to comply with the legal quota, and not only on the formal analysis of documents such as the CCRL. <\/p>\n\n

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The bidder’s self-declaration remains the central instrument for qualification, but its veracity, when questioned based on reliable evidence, can and should be verified through due diligence that allows for the presentation of additional evidence of the bidder’s effort in complying with the quota. <\/p>\n","protected":false},"author":5,"featured_media":0,"template":"","format":"standard","categories":[534],"tags":[535],"ppma_author":[218],"class_list":["post-24408","artigo_pdf","type-artigo_pdf","status-publish","format-standard","hentry","category-edition-226-december-2025","tag-artigopdf","entry"],"acf":[],"yoast_head":"\nHOW TO ATTEST TO THE \u201cEFFORT\u201d IN COMPLYING WITH THE JOB RESERVE FOR PEOPLE WITH DISABILITIES (PWD) AND FOR REHABILITATED INDIVIDUALS UNDER SOCIAL SECURITY? — Advogados<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/justen.com.br\/en\/artigo_pdf\/how-to-attest-to-the-effort-in-complying-with-the-job-reserve-for-people-with-disabilities-pwd-and-for-rehabilitated-individuals-under-social-security\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"HOW TO ATTEST TO THE \u201cEFFORT\u201d IN COMPLYING WITH THE JOB RESERVE FOR PEOPLE WITH DISABILITIES (PWD) AND FOR REHABILITATED INDIVIDUALS UNDER SOCIAL SECURITY? — Advogados\" \/>\n<meta property=\"og:description\" content=\"1. 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