Responsabilidade da administração pública pelo desfazimento da licitação

Abstract

This thesis aims to analyze the State liability on the occasion of the bidding process undoing, since in many cases bidders are surprised by the extinction of the competition and have to bear the losses due to an administrative act which had been issued without compliance with the legal. For this, it became essential to make a study of the several aspects that guide the subject, especially the legal nature of bidding, its revoking causes, constitutional and infra constitutional principles, pecuniary liability of the State, the foundation of the duty to indemnify, pre-contractual liability, indemnity pertinence before the causes of bidding extinction, as well as the incidence of internal and external control, of the right of return in view of indemnities supported by the government and of an eventual characterization of administrative improbity. We conclude that, in view of the constitutional command written in the article 37, § 6º, since some requirements are present, Public Administration is obliged to compensate the losses incurred by bidders due to the extinction of the bid. When payment of indemnity occurs, it is an investigation in administrative headquarters which seeks to ascertain the existence of willful or negligent conduct. Once the negligence or willful misconduct is verified, born to the State a duty to replenish public coffers, taking the appropriate measures, as the respective regressive action. The undoing of the bidding only characterizes the act of misconduct if there is fraud or gross negligence