Obstáculos normativos e organizacionais para a eficiência da relicitação: análise sob a ótica do consensualismo

Abstract

Rebidding an institute established by Federal Law No. 13.448/2017, emerges as a consensual mechanism for terminating concession contracts in which concessionaires can no longer fulfill their contractual obligations, through a model that aims to ensure the continuity of essential public services. Aligned with this essence of seeking amicable and jointly constructed solutions, this analysis adopts the theoretical perspective of consensualism to identify and understand the obstacles to the process. The objective of this study is to analyze the normative and organizational obstacles to rebidding from the perspective of consensualism, investigating their impact on the efficiency of the process, particularly concerning deadlines and collaboration among the involved agents, in order to identify ways to optimize the institute. The methodology adopted to achieve this objective is socio-legal, with a theoretical-explanatory approach, using an exploratory and propositional legal perspective. The research data were collected from responses to information requests submitted to ANTT and ANAC, as well as documents and information obtained from the agencies' and TCU's portals, in addition to a bibliographic review covering studies related to the topic from 2017 to 2024. The research demonstrated that, despite the advances brought by the new institute, from the perspective of consensualism, the practice of rebidding processes still presents significant challenges, mainly due to normative and organizational obstacles, compromising the efficiency of the procedure. After analyzing the cases and studies, it is concluded that there is a need to adopt measures to increase regulatory flexibility, establish intermediate deadlines for the process, and improve coordination among the involved actors, including TCU’s participation in setting guidelines to direct the actions of regulatory agencies.