Halted works and administrative improbity

The principles that govern the Public Administration are morality, efficiency, legality and administrative impersonality. Ruy Cirne Lima, one of the country’s greatest jurists, already said that the activity of the public administrator is that of someone who is not an absolute master and must serve the impersonal purpose of the law.

In interpreting public management, the real difficulties of the manager and the demands of his office are taken into account, without prejudice to the rights of those administered. Moreover, any nullity must take into consideration the consequences of the act.

Indeed, a decision that, in the administrative, oversight or judicial spheres, decrees the invalidation of an act, contract, arrangement, proceeding or administrative norm must expressly indicate its legal and administrative consequences. (Law 13,655, of 25 April 2018)

There is in Brazil an extensive list of works stalled by companies caught up in court proceedings investigating acts of improbity or corruption. The news coverage is abundant. It is not for discussion here the causes of this stoppage, but rather the responsibility of the Public Authorities in resuming the works.

The principle of administrative continuity requires that new works not be started until those already begun are completed. And there are legal instruments that make it possible to continue interrupted works. Commitment agreements, conduct adjustment agreements, leniency agreements, consensual settlements, etc. But legal entities must obviously not be confused with the individual offenders.

In this regard, a technical cooperation agreement has just been concluded among the National Council of Justice, the Federal Court of Accounts and the Association of Members of the Courts of Accounts of Brazil, for joint actions seeking to resume works stalled by judicial and administrative decisions.

The TCU's figures reveal that only 3% of works are halted by the oversight bodies. Most of the time, the reasons are concentrated in three aspects – deficient projects, interruption of financial flow and problems in municipal management. That is, most stoppages are caused by difficulties of the Executive itself or of the companies involved in the works.

The TCU has already held that a successor governor who does not complete the works of the prior administration, with the consequence of a lack of functionality and benefits to the local population, can be held liable. By failing to act, the new governor disregards the principle of administrative continuity and the clause of the transfer contract (Ruling 10968/2015-Second Chamber).

Currently, there are many improbity actions investigating stalled public works. The TCU released an audit according to which 37.5% of the works financed with Federal Government funds are stalled or unfinished. This stage of endemic inefficiency calls for immediate mapping, so that the public authorities can investigate and resolve it.

Fábio Medina Osório is a lawyer and former minister

of the Office of the Attorney General of the Union