A nova lei de licitações e o desenvolvimento da atividade de infraestrutura no Brasil: o diálogo competitivo como ferramenta inovadora para a viabilização de concessões e soluções técnicas eficientes

Abstract

The study of infrastructure activity as a matter linked to the legal administrative regime is increasingly necessary in an innovative scenario. Under the wrapping of this theme, Law No. 14133/2021 - New Law on Public Bidding and Administrative Contracts brought influences to the practical development of infrastructure activity in Brazil, from the introduction of the tool of competitive dialogue as a new form of bidding, according to Article 6, item XLII, and by enabling its application to public service concessions, according to arts. 179 and 180 of the same legal diploma. Following the doctrine of Augusto Neves Dal Pozzo, for whom the institute of concession is the instrument of delegation of infrastructure activity, not being restricted solely to the delegation of public service activity, given that it has a more open archetype to encompass the delegation of other public tasks to private individuals of State competence, this article will address the modality of competitive dialogue as an innovative tool for enabling concessions and efficient technical solutions. This is because such dialogical tool has been used in the United Kingdom for, for example, remodeling schools, building hospitals and reception centers and developing projects and building sports equipment. Despite the gaps and challenges for its consolidation, the work will present the first practical case of intention to use the competitive dialogue in Brazil and will defend the performance of control mechanisms to ensure the governance of the process, providing greater legal certainty to meet the best practices of negotiation. For lack of jurisprudence on the matter, it is up to this work, based on Brazilian doctrine, to address a field of defensive action to the use of the new method of bidding in infrastructure activities, particularly with regard to the concession of public services.