Escolhas interpretativas nas contratações públicas: entre o erro grosseiro e a responsabilização do agente público

Abstract

The present work makes an approach on the norms of legal security in the Law of Introduction to the norms of the Brazilian Law and the Sanctioning Administrative Law. In this context, issues related to interpretive choices and gross error in public procurement will be addressed.Thus, we consider the possibility that factual and legal circumstances, which contributed to the structuring of the decision-making process in public contracts, are causes of exclusion from the responsibility of the public agent in the event of configuration of administrative error. The study of the chosen theme is relevant due to the concerns experienced by public managers due to the overlapping of competences in the control activity. In addition, controlling decisions structured in abstract legal values, which are often dissociated from reality, contribute to legal uncertainty in administrative activities, resulting in what has been called the Public Administration of Fear. Therefore, we sought to understand the relationship between gross error, the interpretation of norms in administrative activity and the accountability of the public agent. Thus, it became necessary to analyze the public agent's accountability system in the context of Sanctioning Administrative Law rules and their relations with Criminal Law, to identify the relationships between the interpretation of rules of indeterminate content and the performance of control over the administrative activity and the examination of the concept of gross error and its structuring in the jurisprudence of the Court of Auditors of the Union. The methodology used consists of bibliographical research of a qualitative nature, with a hypothetical-deductive approach. It is concluded that the isolated use of the "average administrator" criterion is insufficient to characterize the error in administrative activity, since the real management difficulties and abstract legal values have to be weighed when analyzing the fault in the conduct of the public agent.