Limite temporal ao pedido de restabelecimento do equilíbrio econômico-financeiro: análise acerca da constitucionalidade do art. 131, parágrafo único, da Lei 14.133/2021

Abstract

Brazilian Procurement Act 2021 (Act nº 14.133/2021) introduces significant changes to the legal regime concerning biddings and administrative contracts, replacing the previous Brazilian Procurement Act 1993 (Act nº 8.666/1993). Specifically, Section 131, Subsection 1, establishes a deadline for the contracted to exercise the right to the economic-financial balance of the contract. The wording of this paper clarifies that any event causing an imbalance can only be raised during the contract's duration and prior to any potential extensions. This provision is not entirely new within the legal framework, as it aligns with the understanding of the General Accounting Office. Under the Brazilian Procurement Act 1993, the lack of a clear deadline for asserting this right led contractors to argue that maintaining the economic-financial equilibrium should not have limitations, claiming it had constitutional support under Section 37, XXI. Despite this formalization, which theoretically puts an end to the debate on the matter, some scholars challenge the constitutionality of the Subparagraph of Section 131. This study aims to analyze the constitutionality of this new provision. The research adopts a legalation of the juridical-comprehensive type. The initial hypothesis posits that the Subparagraph of Section 131 is unconstitutional. However, this study ultimately rejects that hypothesis, asserting that while the right to economic and financial rebalancing has constitutional grounds, it is not absolute. Nevertheless, it is possible to enhance this constitutional right by permitting claims to be submitted after the established deadline, provided that the delay is adequately justified.