LEGAL REGIME OF PUBLIC CONTRACTS: A PRELIMINARY STUDY –

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1. INTRODUCTION

To carry out its activities and serve the public interest, the Administration carries out unilateral acts – called administrative acts -, bilateral acts – which are Administration contracts and, there are also plurilateral acts, which include consortia and agreements. The objective of this work is to provide a brief summary of administrative contracts, their concept and characteristics, as well as a preliminary analysis of the contracts signed by the Administration to satisfy its needs. The present study does not cover the granting, permission or hiring of temporary public servants.

2. ADMINISTRATIVE CONTRACTS

Conceptually, it appears that the existence of an agreement of wills with the intention of modifying, extinguishing or even creating rights and obligations is called an Administrative Contract, in which one of the parties, who acts by exercising an administrative function through the Administration, has the competence to unilaterally innovate contractual conditions, ensuring the maintenance of the originally existing economic-financial equation. This contract is also known as an agreement or pact, which the Public Administration establishes with an administrative or private entity with the purpose of achieving objectives of public interest, under the conditions proposed by the public entity. (JUSTEN FILHO, 2006).

On this subject, some lessons are valid about contracts in general expressed by the doctrine:

Contract is any agreement of wills, freely signed by the parties, to create reciprocal obligations and rights. In principle, every contract is a bilateral and commutative legal transaction, that is, carried out between people who are obliged to provide mutual benefits and equivalent benefits and benefits. As a consensual pact, it presupposes freedom and legal capacity of the parties to validly bind themselves; as a legal business, it requires a legal object and a prescribed form or not prohibited by law. (MEIRELLES, 2002, p. 205).

In Celso Antônio Bandeira de Mello’s lesson:

Traditionally, a contract is understood as a legal relationship formed by an agreement of wills, in which the parties reciprocally oblige themselves to provide services conceived as counterparts and in such a way that none of the contracting parties can unilaterally alter or terminate what results from the agreement. Hence it is said that the contract is a form of peaceful composition of interests and that it establishes law between the parties. (MELLO, 2007, p. 593).

The general contracting rules are the responsibility of the Union (item XXVII of article 22 of CF/88). However, each federated entity can legislate specific rules.

Law 8,666/93 regulated and provides for public administration bidding and contract standards, and is the main legislation on this topic, although there are numerous laws that deal with bidding on specific subjects, such as Law 8,987/1995, which provides on concessions and permission for public services, among other laws.

When it comes to Administrative Contracts, there are other useful conceptual teachings of the doctrine:

The adjustments that the Administration, in this capacity, enters into with individuals or legal entities, public or private, to achieve public purposes, according to the legal regime of public law. (DI PIETRO, Maria Sylvia Zanella, 2010, p. 251).

A type of agreement between the Administration and third parties in which, by force of law, agreed clauses or the type of object, the permanence of the relationship and the pre-established conditions are subject to changeable impositions of public interest, except for the property interests of the private contractor. (MELLO, 2010, p.621).

The author Maria Sylvia Zanella Di Pietro points out some relevant characteristics of administrative contracts, such as: (DI PIETRO, 2004, p. 261):

  • Presence of the Public Administration as a Public Power: the Administration appears with a series of prerogatives that guarantee its position of supremacy over the private sector, through so-called exorbitant clauses;
  • Public Purpose: must be present in administration acts and contracts;
  • Obedience to the form prescribed by law: the law prescribes several rules relating to the formal aspects of the contract, with the aim of seeking to benefit both contracting parties in controlling legality;
  • Legal procedure: the formalization of the contract must also comply with mandatory procedures that ensure the legality of the acts and which may vary from one modality to another, such as: legislative authorization, evaluation, motivation, authorization by the competent authority, indication of budgetary resources and bidding;
  • Nature of adhesion contract: all clauses are set unilaterally by the Public Administration. Through the notice, the public authority makes the offer, establishing the contracting conditions, linked to laws, regulations and the principle of unavailability of the public interest and through the bidders’ proposals, the offer is accepted.
  • Nature intuitu personae: Administrative contracts are concluded due to the personal conditions of the contractor, ascertained in the bidding procedure, and, as a general rule, subcontracting, association of the contractor with third parties, assignment or transfer, total or partial of the object, are prohibited, except when provided for in the notice and in the contract. These are measures that may constitute motivation for unilateral termination of the adjustment, subjecting the contractor to legal sanctions.
  • Presence of exorbitant clauses: These are clauses that grant prerogatives to the Administration and place it in a position of supremacy over individuals, to perfectly serve the public interest.
  • Mutability: characterized by the possibility of the Administration unilaterally changing contractual clauses or even terminating the contract for reasons of public interest, always taking into account the contracted party’s right to maintain economic-financial balance.

When it comes to the concept of administrative contract, it is important to mention that the categories are defined based on the contracted object. There are four categories that can be cited, as expressed by the author (PEREIRA JÚNIOR; TORRES, 2007, p. 617):

a) Administrative contracts for supply, works and provision of services to the Administration, the rules of which constitute the law of administrative obligations;

b) Contracts and business acts relating to the exercise of control over public assets (cession of use, permission to use, concession of use, concession of real rights and tenure);

c) Contracts and business acts concerning the provision of public services (permission and concession of public services);

d) Contracts relating to the exercise of public functions on a temporary and exceptional basis, in accordance with art. 37. in the Land Statute (Law nº 4,505/64, arts. 94 et seq.).

There is also a way to categorize administrative contracts, according to the understanding of the Federal Audit Court (TCU, 2010, p. 646):

a) Purchase contracts: remunerated acquisition of goods to be supplied in one go or in installments. Example: acquisition of office materials, IT supplies, microcomputers, furniture, etc.;

b) Work contracts: construction, renovation, manufacturing, recovery or expansion. Example: construction of hydroelectric plants, bridges, roads; renovation or expansion of buildings for Public Administration use, etc.;

c) Service contracts: demolition, repair, installation, assembly, operation, conservation, repair, adaptation, maintenance, transport, rental of goods, advertising, insurance or technical-professional work. Example: computer repair, garden maintenance, vehicle rental, air conditioning installation, etc.

2.1. PRIVATE CONTRACT X ADMINISTRATIVE CONTRACT

Administration contracts are genres that encompass those governed by rules of private law, called private administration contracts, and administrative contracts, which are those governed predominantly by public law and subsidiarily by private law, as better explained below:

The legal relations adjusted by the Public Administration arise, essentially, from unilateral and plurilateral acts. The first are, almost always, administrative acts, such as permission to use public property. The second are contracts. Among these, the doctrine distinguishes those governed by Private Law and those regulated by Administrative Law. These are called Public Administration contracts (GASPARINI, 2008, p. 691).

Regarding the extension of the concept of contract, the syllabus, taking into account the context of the law, avoids classifying the contracts it deals with as administrative. With reason. Law No. 8,666/93 does not only deal with administrative contracts, as the wording of its art might make you believe, at first glance. 1st. It takes care of all contracts signed by the Public Administration, which is equivalent to saying that it recognizes the existence of a genre (public contracts), which is subdivided into two types: administrative contracts, mentioned in arts. 1st and 54; and that of contracts whose content is governed, predominantly, by a rule of private law, as indicated in art. 62, §3º, and which do not escape the incidence of a publicized mandatory regime, since certain topical precepts of administrative contracts are extended to them (arts. 55 and 58 to 61). (PEREIRA JÚNIOR, 2007, p. 612).

Administrative contracts have the following characteristics:

  1. Contractual imbalance in favor of the Administration – Verticality; (DI PIETRO, 2009, p. 251), in order to ensure a privileged position for the Administration.
  2. Predominant regime of public law, with the possibility of using private law in a complementary way;

Private Administration Contracts occur in adjustments between the Public Administration and individuals, however, with the characteristic of relative equality and are predominantly governed by private law. They have the following particularities:

  1. Relative contractual balance – horizontality;

  2. Predominant regime of private law, with incidence of public law norms.

In the same line of thought and legal reasoning, in relation to this differentiation between contracts, the following doctrinal classification exists:

Among them, according to current doctrinal language, the following stand out:
a) Private Administration Law Contracts;
b) Administrative Contracts.
The first are governed in terms of content and effects by Private Law and the second would be governed by Administrative Law. Thus, examples of the former include the purchase and sale of a property, the leasing of a house to install a public office in it, etc. The second example is the public service concession, the…