A (im)possibilidade de aplicação de técnicas autocompositivas no processo administrativo de apuração da responsabilidade pela inexecução contratual

Abstract

The present work seeks to analyze the possibility of applying self-composed techniques in the administrative process that establishes the responsibility for the total or partial non-performance of the administrative contract. The purpose of such an application is to allow the Public Administration and the successful bidder to reach an administrative penalty that is in fact proportional to the infraction practiced, which is also an efficient solution capable of meeting the great premise and state scope of meeting the principle of the supremacy of the public interest, protecting the collective from particular interferences and maintaining public hygiene. In order to arrive at the center of the questioning of this work, it is necessary a brief explanation about administrative contracts and their respective non-fulfillment, about the power to apply administrative sanction and its principles limits, and about the penalties that the Law of Bidding and the Law of the Auction for the hypotheses of non-performance. With these considerations in mind, it is part of the discussion of the tendency and encouragement of self-assessment methods in legal proceedings, especially the new civil procedure code and extravagant laws, such as the Civil and Criminal Courts Act, the Criminal Organizations Law and the Anti-Corruption Law. It is then that one enters into the main problematic. Due to the principles that limit the sanctioning prerogative, any application of self-imposed technique may seem incompatible, but there are laws that deal with expressive flexibilizations of the punitive state exercise in order to better determine the facts and composition of the damages caused. Thus, the field of questioning is open to initiate flexibilisations capable of inducing self-determination in the administrative process of ascertaining responsibility for contractual non-performance, when this is able to meet the aforementioned scope of public interest supremacy.