Fundamentos jurídicos para alteração da matriz de riscos em contratos administrativos: a mutabilidade como instrumento para a preservação do contrato

Abstract

Aiming to ensure greater stability for projects developed by the Public Administration in an increasingly volatile environment, the New Public Procurement Act 2021 (Act nº 14.133/2021) introduced an innovative approach by establishing a legal regime of prior distribution of risks between the parties through the so-called “risk allocation clause” (“risk matrix clause”). This instrument defines each party's responsibility for contractual risks in a pre-established and objective manner, encouraging the development of processes aimed at preventing undesirable events and mitigating their effects, while also delineating the circumstances under which each party is entitled to rebalance the contract. However, scenarios may arise in which errors occur in the drafting of the risk allocation clause; or even cases in which the initial risk framework undergoes significant changes, making the distribution of risks and it´s forecast outdated. In such cases, issues with the risk allocation clause may lead to excessive increases in contracting costs, the inadequate implementation of risk management processes, and the imposition of an artificial economic and financial balance, which could ultimately render contract performance unsustainable for one of the parties. Given this context, it begs the question as to whether it is possible to change the risk allocation clause after the contract has been signed. For the development of the investigation, theoretical research was undertaken from the legal regime perspective, based on the investigation of the comprehensive character. The data collected is bibliographical. The primary data analyzed were legislation and technical standards that deal with the matter, while the secondary data were extracted from doctrine, research and academic papers on the subject. Ultimately, the study concluded changes in the risk allocation clause can be viewed as permitted contract modifications if they are used to correct flaws or adapt it to the new circumstances involving the project. This is justified on legal grounds by the principle of pursuing the public interest (Article 5 of Act nº 14.133/2021) through the preservation of the contract, whether to ensure timely delivery of its object or to prevent negative consequences resulting from its early termination.