O Problema da dupla imputação

cartel e fraude à licitação

Abstract

THE PROBLEM OF DOUBLE CHARGE: CARTEL AND BID RIGGING 

Abstract

When there are price agreements between competitors in a government bidding process, one might foresee the incidence of both the crime defined in article 337-F of the Brazilian Penal Code as "thwarting the competitive character of a bidding process" and that of cartel misconduct, criminalized in article 4, II, “a” of Law nº 8.137/1990. Throughout this paper, we intend to answer the question: in this case, does double charge violate ne bis in idem? We defend the use of public property and the value of free competition as the rechtsgut for each crime, according to the structure of abstract danger. We suggest, then, three hypothetical situations. In the first, in which a single procedure is thwarted, we understand that cartel misconduct does not occur. In the second, in which multiple procedures are thwarted, we propose that cartel misconduct should be absorbed by the bid rigging offense. Finally, in the third hypothesis, in which there are, effectively, distinct cartel-like agreements, we suggest double charges are possible, following article 70 of the Penal Code. Therefore, we conclude that, except for the outside case defined in the third hypothesis, double charge in price agreements for public bids violates ne bis in idem.

Key-Words: cartel, bid rigging, thwarting of a bidding process, bis in idem, Rechtgutslehre.