THE DIRECT CONTRACTING OF PETROBRAS IN PRE-SAL: Implications for free competition and for the economic development of the sector under the bias of the constitutional principles of Public Administration and the bidding.
Pre-salt, direct contracting, Petrobras, free competition.
The discovery of oil in the Pre-salt layer in Brazil and the subsequent confirmation of
the technical and economic viability of its exploration started several discussions in
the political scope about the need to regulate the exploration and the destination of
the resources coming from. By constitutional provision, mineral resources found
underground are owned by the Union. In addition, the Constitution provides that the
right to develop research and economic exploitation of these resources is monopoly
exclusive to the Union. However, it is permitted To the Union to contract with state or
private companies to carry out the research and the mining of oil deposits. In this
context, Federal Law 12,351 of December 22, 2010 (Pre-salt Law) was enacted,
which established the normative targets for the exploration and production of oil,
natural gas and other hydrocarbons in the Pre-salt Under the system of production
sharing. The Pre-salt Law brought the possibility of contracting Petrobras directly by
the Federal Government, without a bidding procedure. This form of contracting is an
exception to the constitutional rule of mandatory bidding procedure. This is because
it should only be put into practice in cases where the CNPE identifies that direct
contracting will be beneficial to the preservation of the national interest and to
meeting the other energy policy objectives. This new system has brought to the fore
some discussion about its compatibility with the constitutional principles of public
administration and bidding, as well as the impacts that could be the cause of free
competition and the economic development of the sector. Thus, the present work has
the scope to analyze if the direct contracting of Petrobrás in the Pre-salt is in line with
the constitutional principles pertaining to Public Administration in Brazil, foreseen in
art. 37, caput, of the Federal Constitution, with the principle of mandatory bidding,
contained in art. 37, item XXI, of the Magna Carta, and with the guiding principles of
the bids, contained in art. 3, Federal Law 8,666, dated June 21, 1993. The present
study also intends to evaluate whether the Petrobrás direct contracting institute to
operate in the pre-salt oil reserves may have an impact on the sector's competition,
Light of the principle of free competition, set forth in art. 170, IV, of the Federal
Constitution, with emphasis on the possible weakening of the pace of investments
and the development of the pre-salt oil industry. Under this approach, it is intended,
in short, to verify the impacts that the direct contracting of Petrobras may cause to
the sector, especially with regard to the development of free competition, under the
bias of the constitutional principles pertaining to the Public Administration and the
bidding. Finally, solutions will be indicated for the problem studied, so as to avoid the
realization of the serious damage that the institute of direct contracting may cause to
the pre-salt sector, to the state enterprise, as well as to all the economic agents
involved, to the State And the economy of the country, due to the mitigation of
competition in the sector.