Concorrência e contratação pública: problemas e propostas acerca da cartelização em licitações no Brasil

Abstract

The undue restriction of bidding competition in public procurements occurs in three typical forms: corruption, competitive restrictions caused by the State itself and anticompetitive conducts perpetrated by private economic agents. The cartels are the most usual manifestation of the latter of this forms. Effective competition is a relevant value for public procurement, which needs to be better protected and promoted. However, some rules of procurement regulation occasionally produce unintended consequences, which end up creating undue incentives for the organization of cartels. This work examines, under a pragmatic focus, some examples of procurement regulation that create incentives for the organization of cartels and presents some possible proposals for the redefinition of the normative design. It is argued that the public procurement law should be better pervaded by competitive concerns that are currently restricted especially to Competition Law. The aim is to contribute to the construction of an adequate system of incentives produced by the public procurement regulation, in order to help the State to better fulfill its role of avoiding the establishment of cartels or making their less sustainable.