The New Federal Act on Concessions of Public Services and Public Works

Abstract

Why refer to licitations and administrative contracts when focus the theme of concessions and permissions of public services? The fact is that the 1988 Constitution, differently from the previous ones, has stated, in article 175 that is a task of Public, directly or under the rule of concession or permission, but always through licitation, the operation of such services, being in form of the law (it's private competence of the Union to legislate about general rules on licitation and administrative contracts) will the rules of concessionaires and permissionaires of public services be disciplined (we're not mentioning either concessions or permissions to use public properties), the feature of contract, etc., including the user's rights, the fare politics and the obligation to keep appropriate service. São Paulo State had already disciplined the issue through Law 7.835/92, including rules about licitation and even its exceptions, stating that this licitation must be the concurrency, and determining (article 3, sole §, that the Public Power, act of his own, or by delegation, would publish the definition of object, area of operation, time terms and directions to be observed in the concurrency "Edital" (this was repeated by the federal Law 8.987/95, article 5th). That's why in the recent governmental decision of concession of the Anhaguera/Bandeirantes system, were published the Decree 40.077, 10.05.95, and the Transport Secretary Resolution n. 16, in the following day. Such comments about licitation are enough, by now, but it's worth stating that by confronting the State law the Federal law, was prevailed what in opposite has been stated on the latter. For example, the Federal law does not foresee cases of licitation exceptions, issue that certainly constitutes "general" rule, of Union competence (art. 22, XXVII, Federal Constitution). But the questions that might be misunderstood, refer more specifically to the contracts of concession, and, after that Federal law, the permission contracts as well. My desire, here, is not to teach what is an administrative contract, but provide that a debate could arise, in order to get to a conclusion on the imperfections and the necessity or not of changes on Federal law, or interpretations that could make the application of the law possible.