Análise da (in)constitucionalidade do regime diferenciado de contratações à luz dos princípio constitucionais e da lei 8.666/93

Abstract

According to article 37, XXI, of the Federal Constitution of 1988, the Public Administration should conduct the bidding process to carry out procurement of works and services, except in cases where the law excuse or not requires this process. In this sense, the Law number 8.666/93 was enacted to regulate the above constitutional provision, establishing the rules for the award of tenders and administrative contracts. Happens that the law has an excess of formalism and bureaucratic procedures, which sometimes hinder the contracts speed and efficiency. From this perspective, from when Brazil was chosen to host the World Cup 2013 Confederations, the Olympic FIFA World Cup 2014 and the Olympics in 2016, created a deadlock on the need to achieve in a short time the various infrastructure works that these events require, against the bureaucracy imposed by Law number 8.666/93. In this sense, from the edition of Law number 12.462/2011, it was introduced in Brazil the differentiated regime signings (DRS) as the goal of reducing the formalities, ensuring greater speed and efficiency in public procurement. It happens that, since its enactment, this law become a questioning target about its constitutionality on the grounds that it would be fraught with both formal and material defects. In this context, this paper aims to make a study on the possible unconstitutionality of the differentiated regime signings, analyzing their devices before what provides the Federal Constitution and the Law number 8.666/93, which governs the general process of bidding. Therefore, the bibliographic research was used as a methodological source, so they were analyzed doctrinal and jurisprudential positions on Law number 12.462/2011, making a comparison between this legal diploma with the bidding law and the guiding principles of administrative activity.