Alocação de riscos e equilíbrio econômico-financeiro nas contratações públicas

Abstract

This academic work aims to carry out an analytical study on the allocation of risks in public procurement and their interference in the economic-financial balance of the contract, which is based on the Federal Constitution and confirmed by infra-constitutional law, and whose premise is to ensure the maintenance of the original conditions of proposal that was offered by the proposer. The Bidding Law and the Concessions Law presents a risk matrix of a legal nature. However, with the enactment of new laws that deal with public procurement in our order, we were required to prepare a risk matrix of a contractual nature. This matrix must respect the meaning of the constitutional text, maintaining the general rule that the risks of extraordinary aleas must be attributed to the Administration, while the risks of the ordinary alea remain with the contractor. And to assist public administrators in defining what are the ordinary risks and what are the extraordinary risks, for proper allocation in the matrix, the general assumptions for the allocation of risks in the contract should be used, as well as the economic aspects that involve the relationship contractual, since greater risks certainly mean higher costs, because the risks, for the most part, are priced. In short, the analysis of the allocation of these risks should be carried out by the administrator, in the specific case, when defining the contractual clauses, taking into account the premises of current legal system and the economic aspects