Análise da possibilidade do pagamento direto efetuado pela administração às empresas subcontratadas de médio e grande porte

Abstract

This paper examines the legal feasibility of direct payments by the public administration to subcontractors in administrative contracts. It begins with a historical overview of administrative contracts and subcontracting, with a focus on the limitations imposed by current legislation. Subcontracting, defined asthe practice in which a contracted party delegates part ofits obligations to a third party without transferring the primary responsibility, isregulated by Law No. 14.133/21, which sets forth restrictions on subcontracting. The study explores the concept ofsubcontracting and itsimplications, highlighting the circumstances under which the Administration may directly pay the subcontractor. It analyzes, in light of Article 63 of Law No. 4.320/64, the possibility that, after the original contractor evaluates and approves the services rendered by the subcontractor, the subcontractor may send the administration only the invoice, which includes the approved amounts and contract numbers, for the direct payment to be made. The study seeks to determine whether there has been a shift in the jurisprudential understanding of the possibility of direct payments to subcontractors over time. To this end, decisionsfrom the Federal Court of Accounts (TCU) and doctrinal views on this practice were reviewed. The analysis of Article 63 of Law No. 4.320/64 discusses the possibility that, after the original contractor’s evaluation of services, the subcontractor could submit only the invoice with the approved amounts and contract details for the administration to make the direct payment. A review of doctrinal perspectives and TCU decisions reveals differing interpretations on the viability of this practice. In conclusion, while legislation imposes limitations on subcontracting, direct payment to the subcontractor is legally viable, provided that legal requirements—such as the approval of measurements and fulfillment of contractual obligations—are met. This proposal aims to streamline the payment process without compromising transparency and compliance in the execution of administrative contracts.