Procedimento de manifestação de interesse (PMI): uma reflexão à luz da Constituição da República de 1988

Abstract

The procedure called expression of interest process is an instrument used by the Brazilian public administration which allows for interaction with the private sector during the planning fase of traditional concessions of public services and public-private-partnerships through presentation of studies, research, surveys and projects that could form the basis for future Governmental tenders. It is not a novelty that in the Democratic State of Law administrative law has reconstructed and adapted itself to social realities, trying to establish more and more a substantive democracy through adopting consensual forms of action using instruments that allow for peoples participation in government activity. Given this background, the procedure of expressions of interest forms an important instrument of institutionalizing the dialogue between the public and private sector in the fase preceding a tender, providing transparency, legal certainty and legitimacy to State actions. However, despite numerous advantages of private sector participation in administrative actions, the public-private interaction is not impervious to criticism. The use of the expression of interest procedure can result in certain problems which need to be perceived and avoided in order to ensure its contribution to the realization of the public interest. In this regard, the possibility that the decision of the public official is not impartial, favoring the interests of specific sectors of society at the expense of the collective interest needs to be emphasized. Therefore, this study sought to analyze the expression of interest procedure based on the Federal Constitution of 1988 in order to ensure that it would be used in accordance with the transparency principles regarding State action, especially with ample publicity, transparency, efficiency and adequate rationale behind decisions. Notwithstanding the obviousness of following these directives in government activities, it is observed that in the Brazilian administrative practice they have not been adopted correctly.