Cartéis em licitações públicas e a relação interinstitucional entre CADE, órgãos licitantes e autoridades de controle e repressão sob o paradigma do direito administrativo sancionador

Abstract

Public procurement in Brazil accounts for approximately 12 to 15 per cent of the country's GDP, according to recent research. It is undeniable that tendering procedures, which are the general rule for the Public Administration to contract a service, carry out a work or purchase products, are given special treatment by the control bodies, including CADE (the Administrative Council for Economic Defence). Recently, the authority has been prioritising the fight against anti-competitive conduct in the context of public tenders and contracts, especially cartelisation between companies competing in the same market. This need became so important after the unveiling of cartels at Petrobras and other state-owned companies, widely reported in the national press. The New Bidding and Contracts Law (14.133/21), in turn, expressly authorised the formation of consortia between bidding companies for the purpose of taking part in bidding processes. In a different direction to the old Bidding Law (8.666/93), the participation of consortia in public procurement is now authorised as a general rule and no longer as an exceptional hypothesis, necessarily justified by the manager. Thus, art. 15 of the aforementioned statute expressly states that, unless there is a duly justified prohibition in the bidding process, a legal entity may participate in a bidding consortium. The Competition Law, on the other hand, exempts from the agency's merger analysis the cases of associative contracts, consortia and joint ventures between competing companies, when carried out for the specific purpose of participating in tenders, auctions and share acquisition operations through public offers (art. 90, sole paragraph). The central aim of this dissertation is to analyse, under the paradigm of modern sanctioning (punitive) administrative law, the legitimacy of CADE's control of consortium mergers in public tenders, as well as the legal possibility of imposing penalties on the consortium, when damage to the competitive environment has been demonstrated, even if there is no probative evidence of the existence of collusion, explicit or implicit, or any other kind of anti-competitive intent on the part of the consortium members. In addition, it will be analysed the interinstitutional relations established within the complex web of bodies and entities responsible for control, regulation, inspection and the state's jus puniendi in relation to public tenders, criticising the uncoordinated and often conflicting activity between these agents acting on behalf of the state, based on a vast body of doctrine, by analysing cases and studies on the subject, demonstrating the unpredictable and deleterious effects of this uncoordinated overlapping of instances and spheres of control under the paradigm of the rule of law and, specifically, the deontological principle of legal certainty and the protection of the legitimate trust of the administered in their relations with the state. From the theoretical perspective of the Economic Analysis of Law, the systemic flaws in the Brazilian regulatory-normative environment that make state intervention in the economic domain possible will also be assessed, with the aim of showing the reader how the country's regulatory complexity fosters a perverse mechanism of oligopolisation of important sectors of the economy, resulting in structural damage to broad competition in public tenders and, consequently, facilitating collusion between private agents in the public procurement scenario. In the end, the current model will be criticised and will be proposed new mechanisms capable of effectively combating collusion in bidding processes, safeguarding, on the other hand, legal certainty, the autonomy of the public bodies managing the processes, as well as the principles and rights conferred on private agents in their relations with the public authorities, bringing up the normative institutes of the Economic Freedom Law and the LINDB.