Compartilhamento de ganhos de eficiência e equilíbrio econômico-financeiro nas concessões de serviço público e parcerias público-privadas

Abstract

The issue of the economic and financial balance of complex public contracts, including concession agreements for the provision of public services and public-private partnerships (PPPs), has been raising questions and relevant complications. Under the pretext that the economic and financial balance of these contracts has a dynamic character, it is possible that the parties to the contract behave inconsistently with the duty to maintain the economic and financial balance of the contract, in order to fully or partially appropriate efficiency gains or demand the sharing of these gains during the execution of the contract, disfiguring the dynamic nature of the contractual economic-financial balance. Therefore, this research aims to investigate how the sharing of efficiency gains in concession agreements and PPPs can be applied consistently with the duty to maintain the economic and financial balance of public contracts. This research is based on a legal-dogmatic premise and is classified as a legal comprehensive type of investigation. The hypothesis raised is that the sharing of efficiency gains will only be compatible with the maintenance of the economic and financial balance if applied coherently with contractual risk allocation. Based on the thesis that concession agreements and PPPs are instruments of cooperative administration and considering the directive function of administrative law, the research carried out partially confirms the hypothesis mentioned above, because, in addition to the need for consistency with contractual risk allocation, the sharing of efficiency gains depends essentially on the provision of procedural rules which define de procedure to be followed by the parties to the contract.