Prazos flexíveis às concessões de infraestrutura

• Autor(a) principal: Santos, Gabriella Marques de Azevedo dos
• Data de Publicação: 2016
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional do FGV (FGV Repositório Digital)
• Texto Completo: https://hdl.handle.net/10438/18145
• topic: Regulation; Public services; Infrastructure; Renegotiation; Governance; Contracts with flexible terms; Investment partnerships program; Highways; Regulação; Serviços públicos; Infraestrutura; Renegociação; Governança; Contratos com prazos flexíveis; Energia elétrica; Rodovias; Programa de parceria de investimentos; Direito; Direito regulatório; Agências reguladoras de atividades privadas; Concessões administrativas; Contratos administrativos; Infraestrutura (Economia); Governança; Parceria público-privada

This paper aims to develop about the possibility of contracts with flexible term in different situations in the Brazilian infrastructure scenario. Flexible terms when used as contractual renegotiations deserve greater attention, especially in relation to governance, because the number of their incidence is increasing in Latin America. However, renegotiation of the infrastructure contracts has contributed to the increase of cost and business’ inefficiency. Case studies in the energy sector and highway sector show renegotiation assumptions and reveal negative consequences arising from its process. In the energy sector, the change in the system of energy commercialization affected the concession of use of public property to independent producers of electricity power. The extension of the term of these contracts was the proposed solution to mitigate the risks involved. About São Paulo State´s highway concessions, the economic crisis was the cause of the extension of the term as object of renegotiation. It is proposed a more efficient management of the 'flexible term' mechanism as a hypothesis of renegotiation. This tool presents benefits to different infrastructure sectors, if they are well designed and structured. It is necessary, however, respect the importance given, by the Law 8.987/95, to fixing of terms as an essential clause of the concession contract. The recent 'Investments Partnerships Program' emerges to strengthen the attempt to provide legal certainty and predictability in cases of renegotiation of concession contracts. The mechanisms of control and transparency can be imported to the other hypotheses of extension of contractual term that not only due to new investments. A space for greater dialogue between public and private actors, including regulators, should be fostered. It is argued that the possibility of predicting flexible deadlines for infrastructure contracts can contribute to the mitigation of business risks, making contract execution more efficient.