Dispensa indevida de licitação: o dano ao erário na caracterização da ato de improbidade administrativa.

Abstract

Public tender is the administrative procedure previous the public employment, it consists into assure instrument for the principle administrative expressed in the present Federal Constitution from 1988, beyond to observe the own dictates to the bidder activity minded into the infra constitutional juristic. The importance of this institute pre contractual is so high that its undue dispense or in other words, the direct contraction by the public managers made out from the legal permission of dispense, it is typified by the lawgiver how an act of administration improbity that cause harm to the purse. This way, if the administrator directly contract outside the legal hypothesis of bidder undue listed in the Law 8.666/93, this practice is forecasted as an act of administrative dishonesty typified onto the art. 10 VIII from the Law 8.429/92. Its normative subsumption, however, in the mentioned words art. 10, necessity to the demonstration of effective harms, being this the accuracy of the caput, whose content discipline the unrighteous act that cause damage to the purse. It’s based into this hermeneutics that part of the comprehension jurisprudential comprehend that the mentioned damage needs to be effectively demonstrated affirming for the impossibility of its presumption; evidential necessity that, procedurally, directed into the question how to realize the proof produce that one inexistent bidding result in damage for the purse. This present work based itself by the critics to the jurisprudential decisions the comprehension the absence of normative subsumption of the undue dispense of bidding how an act that cause damage to the purse because an absent damage demonstration. This form, it has how goal to analyze the damage to the purse by the undue dispense of proper bidding to the normative subsumption required for the capitulation of the improbity act of the art. 10 VIII from the Law 8.429/92, in other words, the damage to the purse, analyzing the relevant jurisprudential to the theme, as well, it leaning about the presumption of the damage to the purse, when it’s absent event previous bidding to the public hiring, with the purpose of characterization of the undue dispense of bidding as an act of administration improbity that causes damage to the purseG