The current discussion on the concept of administrative contracts and risk management on private-public partnership contracts (PPP)

Abstract

The concept of administrative contracts has evolved and underwent transformations, but not without controversy. The foundations of the classical theory administrative contracts and ordinary and extraordinary risks theory is the starting point for interpretation in order to objectively share the risks in pubic concessions. The distribution of risks in public-private partnerships is the central concern of this article. The main elements of the traditional risk theory, despite the opposition of large part of the doctrine and the majority of jurisprudence, should not be interpreted based solely on this theory It is necessary to equalize the values involved in the concessions and try to balance relations with elements of private contract law, presenting new view on the legal exorbitance in administrative contracts. The doctrine that advocates the development of administrative law and administrative contracts makes it easier to apply new forms of public concessions. Apparently the lack of awareness of the historical context and current institute of administrative contract can generate perplexity and even derail the practical application of the new legislation, especially the Law 11.079/2004. The solution grounded only in the risk theory is not correct, considering its insufficiency to face the complexities concerning the current public contracting processes, hence the Public Administrantion’s need to resort to private law guidelines, especifically the administration of risks in administrative contracts. The advent of new Brazilian rules on concessions and public-private partnerships (Law 11.079/2004 - PPPs) apparently tends to overcome the problems brought by vagueness concerning risk-sharing .