O fomento estatal às organizações sociais

Abstract

The aim of the subject studied is to analyze and understand the government support to social organizations qualified under the Law No. 9.637/98. As most ministers of the Supreme Federal Court did not examine the merits of the Direct Unconstitutionality Action 1.923-5/DF, there is still much debate about the constitutionality of the law. The controversial aspects on the subject begin with proper understanding of the promotion. Unlike the supporting part of the doctrine, promotion should be understood as a providing administrative activity required by the State, for the Constitution demanded, not only provided, that some activities were promoted. It is for the Government to choose the mechanism to exercise this, since it meets the standards of public law. One of the mechanisms to foster the federal is qualifying non-profit private entity, as social organizations. Despite the many criticisms to the social organizations ´s model, only few academic studies set out to address the model in a systematic way. By analyzing the Law nº 9.637/98, this particular study found its constitutionality, excepting only discretionary analysis in qualifying entity. This discretionary judgment, however, does not taint the whole model, as the promotion intended for social organization occurs through the management contract - previously preceded by bidding procedure under Law nº. 8.666/93. Adopting bid prior to the conclusion of the management contract prevents undue favoritism and ensures that the contractor have the requirements for qualification. Bidding is, therefore, a means to safeguard the principle of equality, not always respected in the exercise of promotion activity. Once the entity that will conclude the contract management is chosen, the assignment of civil servants is allowed, which is constitutional means to foster an entity, the permission to use commonweal, given the bidding and the transfer of public funds. Another important point related to the model of social organizations refers to the participation of State representatives on the board of directors of the entity, which demonstrates the close and cooperative way of working between the State and some different sectors of civil society. These public authorities representatives also have supervisory function in the use of property, the assignment of servers and the use of public funds, in addition to contribute with their "expertise" in managing social organizations. Despite the many social organizations model´s peculiarities, it is possible to note similarities with the model of autonomous social services, which are private entities promoted by the Government, that have great prominence nationally. It is clear, thus, that the social organizations stated in Law nº 9.637/98, may be useful in the achievement of administrative activity to promote, as will be carefully dealt with in this thesis.