TCU e stare decisis administrativo: o caso das cláusulas restritivas em editais de licitação de obras de engenharia
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Data
2019-08-28
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Universidade Federal de Goiás
Resumo
The impacts of the costs of corruption are notorious in jeopardizing the effectiveness of public
policies in Brazil, whose increase may be related to the lack of effective oversight by the
control bodies. The concomitant control of irregularities in public bildings bids by the Audit
Courts is justified, since it is in the internal phase of the event that the definition of the
object, the rules of authorization and the conditions of execution occur, which may allow its
direction and preset a victor of a future dispute; or even generate the impossibility of its
realization. Bids and administrative contracts for engineering works and services are endowed
with technical peculiarities that require the interpreter and the applicator of the Special Law to
pay attention to the insertion of potential restrictive clauses of the competitive nature in their
convening acts. Thus, it is defended the concomitant control of public bidding for works by the
Courts of Accounts as a public policy of corruption’s prevention. In this context, the term
"restrictive clause to competitive character" is an indeterminate legal concept, the occurrence
of which may attract external control by the competent court or court. The jurisprudence of
the Federal Court of Audit (TCU) can give the manager an important source of knowledge for
making decisions regarding the planning and execution of its activities, functioning as an
instrument to induce good practices, avoiding the occurrence of irregularities, correcting the
asymmetry of information among the jurisdictions. However, a large volume of guidelines on
bids and administrative contracts generated by the TCU has the potential to create
interpretative difficulties for its jurisdictions. Considering the TCU as a constitutional court,
whose judgments must form administrative jurisprudence to be followed by the Public
Administration, it is desired with this study to evaluate if said court uses its decisions as
precedents in the matter of bids and contracts for the judgment of analogous cases, using as
an example examples of clauses restrictive to the competitive nature of public works bids
extracted from bibliographical research. It was verified that the TCU has not yet incorporated
the system of precedents in its decisions, through a search in its basis of judgments available
on the internet, which may lead to the application of reprimands that disregard the principles
of isonomy, integrity, impersonality and legal certainty, because it jeopardizes the coherence
and the rationability of the decisions issued in the external control processes. The conclusion
of this study pointed to the need to improve TCU's decisions, and this court should have two
agendas: one to overcome historical weaknesses such as the need to consolidate
jurisprudence and improve and harmonize proceduralism (which should be typical and
autonomous) and another focused on the incorporation of new technologies, such as artificial
intelligence, to work routine, with possible agreement with the Superior Court of Justice (STJ)
to improve its jurisprudence service and indexation of its judgments, to avoid legal
uncertainty, with the provision of the judgments in a standardized way, with a simple
structure, intuitive access to their electronic address, using clear and accessible language.
Descrição
Palavras-chave
Licitação de obras públicas , Controle concomitante , Cláusulas restritivas ao caráter competitivo , Concreção do sentido , Precedentes administrativos do TCU , Public building bidding , Concomitant control , TCU , Restrictive clauses to the competitive character , Meaning of sense , Administrative precedents of TCU
Citação
NAVES, F. M. R. TCU e stare decisis administrativo: o caso das cláusulas restritivas em editais de licitação de obras de engenharia. 2019. 170 f. Dissertação (Mestrado em Direito e Políticas Públicas) - Universidade Federal de Goiás, Goiânia, 2019.