Fatores de continuidade ou extinção antecipada de parceria público-privada: análise qualitativa-comparativa (QCA) das condições indicadas pela literatura com dados dos contratos firmados entre 2006 e 2022

Abstract

The Public-Private Partnership (PPP) contract described in Law No. 11,079/2004 is a complex legal arrangement that deals with a multiplicity of factors that can guarantee its continuity or lead to its early termination. Having reviewed the specialised bibliography, it is clear that the national literature discusses the conditions that can positively or negatively affect such contracts in an isolated manner, and rarely analyses the combination of these conditions or promotes empirical studies in this sense. Considering the dimension of the PPP as an instrument for contracting public infrastructure policies, the low infrastructure stock in Brazil, the need to increase investments in the sector and the importance of infrastructure for the country’s economic development, this work aims to identify the existence of isolated or combined conditions sufficient and/or necessary for the early termination and/or continued execution of PPPs. The hypothesis of this research is that there would only be combinations of conditions capable of accomplishing this. The solutions resulting from the qualitative-comparative analysis (QCA) carried out in crisp sets, however, challenged the proposed hypothesis, and brought innovations to the literature by pointing out the existence of isolated conditions sufficient and necessary for the non-extinction of PPPs as well the existence of combinations of conditions whose absence or presence contribute to the termination of these contracts. The analysis was conducted based on a literature review and a review of available data on all 199 (one hundred and ninety-nine) Brazilian PPP contracts signed up to May 2022. The literature review identified conditions for the termination and/or continuity of contracts across five thematic axes: new public governance, importance of trust between partners, contractual mutability, corruption, and effects of crises on PPP contracts. Merging the literature and available data, 10 (ten) conditions were obtained, analysed by the fsQCA software in relation to the result of early termination of the PPP contract: participation of society; mutability; alternative dispute resolution methods; hiring an auditor and/or independent verifier; intervention by control bodies; application of sanctions; legal litigation between partners; corruption; causes modifying the contract; and crisis. The main results are innovative in relation to the conditions described in the literature. First, 6 (six) sufficient and necessary conditions were identified for the non-extinction of 167 (one hundred and sixty-seven) public-private partnerships: I. the presence of societal participation, II. the absence of causes modifying the contract, III. the lack of application of sanctions, IV. the absence of corruption under investigation, V. the absence of legal litigation between the partners and VI. the absence of alternative dispute resolution methods. Six configurations of conditions were also presented, combinations between positive conditions and negative conditions highlighted in the literature, whose presence or absence in the cases contributes to the early extinction of PPPs.