Acordos-quadro no modelo norte-americano e comunitário europeu: uma análise comparativa com os procedimentos auxiliares da licitação no direito brasileiro

Abstract

One of the great contemporary challenges in public procurement is how to make them more efficient, adherent to the private market dynamics and able to absorb, understand and better respond to the public needs, especially due to social, technological, scientific developments and the cyclical economy crises. Framework Agreements have been one of the main techniques for aggregating public procurement, commonly related to efficiency and transaction cost reduction. In increasing use around the world, the tool is driven by technological development and has been seen as a way to meet the constitutional precepts of efficiency and democracy, both in their various facets. The internationalization of Administrative Law, especially the institutional and normative arrangements or techniques related to government procurement, similar to several countries, demonstrates several similarities in the way the Framework Agreements work in various national and transnational orders, despite the differences in legal systems. The international consolidation of the Framework Agreements - which has been taking place in recent decades - combined with the fact that the new brazilian acquisition regulation, Law nº 14.133/2021, has inaugurated a nacional guideline for the centralization of public purchases, claims better understanding about the matter. The general objective of the present research is to understand the content and the extension of the legal and practical aspects of the Framework Agreements in North America and European community in order to establish comparative and normative parameters for the application to the new brazilian acquisition law and its forthcoming regulations, as well as evaluating whether such characteristics can bring improvements in the management and legal framework of centralized contracting in Brazil. Government purchases represent a substantial portion of the GDP and expenditure of the governments, carrying with it significant capacity to transform society, although still not explored as it could be. Public procurement rises as an essential source for economic and social development, at the same time as it can be a valuable instrument to combat old problems that affect the functioning of Public Administration, such as inefficiency and corruption. In the quest to explore the functioning of AQs, it is relevant to inquire in what type of structure it is desirable for them to be managed - the central purchasing bodies (CPB) -, and it is pertinent to explore other surrounding aspects so that the use of AQs has greater potential to achieve satisfactory results (such as professionalization and better relationship with the private sector). Therefore, it is essential to better understand the context of national, international and transnational centralized public procurement, which, in the present research, points out that the Brazilian normative apparatus, although it has some similarity to the North American and European Community Framework Agreements model, still has a lot to evolve.