Formação de parcerias empresariais entre estatais e empresas privadas

Resumo

Federal Law No. 13,303/2016 (State-owned Corporations Act) put strategic partnerships between state-owned companies and private companies in the spotlight. More specifically, article 28, paragraph 3rd, II, exempted the incorporation of such partnerships from public procurement rules. The legal phenomena of partnerships precedes the State-owned Corporations Act. In this sense, the rationale underlying the aforementioned provision was to increase legal certainty and ensure flexibility for state-owned companies to incorporate partnerships. In practice, it is still not clear if such rationale is being fulfilled. On the other hand, the provision created a space for the Federal Court of Audits (Tribunal de Contas da União – TCU) to exert a more intensive controlling power over partnerships. This can be assessed based on TCU’s precedents entailing strategic partnerships entered into by federal state-owned companies before and after Federal Law No. 13,303/2016. There is a change regarding TCU’s orientation: from a posture that did not account for the proceeding related to formation of the partnership, but was rather focused on specific matters of such proceeding, to an active posture that questions the proceeding as a whole and establishes requirements that are not expressly provided for in the State-owned Corporations Act. This active posture grows after the State-owned Corporations Act. It is worth highlighting a case in which TCU imposed to members of a state company to undertake a review and renegotiate economic-financial clauses of a partnership which was already established. This posture should imply precautions from members of state-owned companies, as well, as for private companies concerning the formation proceeding in order to mitigate risks on the legal validity of future partnerships. Therefore, besides assessing the change in TCU’s posture regarding the matter at hand and the relevant aspects of each of the analyzed precedents, this work also comprises the internal statutes of the main federal state-owned corporations in order to extract good practice points that may be replicated to other cases and shield the legal validity of future partnerships.

Ficha do documento

Tipo

Dissertação

Ano

2021

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/31858

Temas

PPPCompras Públicas

Palavras-chave

State-owned corporationsStrategic partnershipsFederal Court of AuditsState-owned corporations lawUnfeasibility of competitive proceedingMotivationParcerias estratégicasTribunal de Contas da UniãoEmpresas estataisLei das EstataisInviabilidade de procedimento competitivoMotivaçãoDireitoBrasil. [Lei n. 13.303, de 30 de junho de 2016]Parceria público-privadaEmpresas públicasBrasil. Tribunal de Contas da UniãoDireito público