Parcerias empresariais público-privadas: as parcerias e outras formas associativas em oportunidades de negócio na Lei das Estatais

• Autor(a) principal: Assis, Luiz Eduardo Altenburg de
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/21955
• topic: Empresas estatais; Parceria público-privada; Joint ventures; Oportunidade de negócio; Contratos administrativos; State-owned company; Public-private sector cooperation; Public-private joint ventures; Business opportunities; Public contracts; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The present dissertation proposes to analyze the submission of public-private joint ventures to the legal regime of public law. Established in Law n. 13303/2016 as partnerships in business opportunities, these partnerships are instrumented by associative agreements signed between state-owned companies and private companies for the joint development of economic enterprises of common interest, with sharing of risks and results. As they share elements of joint ventures and public-private partnerships, these public-private joint ventures reflect a manifestation of the phenomenon of administrative consensuality and the use of private law instruments for the realization of public interest purposes. Public-private joint ventures are distinguished between incorporated joint ventures, which originate other companies with legal personality, and contractual joint ventures, where partners retain their legal autonomy vis-à-vis third parties. To understand the precepts governing these partnerships, it should be remembered that state-owned enterprises are subject to a hybrid legal regime, based on the regime of private companies, but focused on the realization of the public interest defined by law and subordinated to administrative principles. Therefore, the choice of the state-owned company for structuring a business partnership reflects the exercise of discretionary competence guided by the characteristics of these partnerships, the administrative principles and the public interest purpose that legitimizes their activity. Based on these parameters, the formation of public-private joint ventures continues to be subject to the principles governing the exercise of the Public Administration, even though §3 of article 28 of Law n. 13.303/2016 excludes the application of the general government hiring regime regarding the choice of private partner in business opportunities. Consequently, in the case of unviable competition, the choice of the private partner must be motivated by rational criteria based on characteristics that are directly related to a specific and defined business opportunity. In the event of competition viability, it is necessary to carry out a competitive procedure adapted to the specificities of these business associations, which should not to be confused with a bidding process, cannot dispense the observance of administrative principles. In all cases, the performance of the state-owned company, especially regarding its contractual relations, must occur under a procedural basis and be submitted to the control mechanisms of the Public Administration