Análise econômica do direito da concorrência nas contratações públicas

Abstract

In the Brazilian legal scenario, the Competition Defense Incentive Structure acts in the identification, repression, and prevention of cartel practices, with the aim of seeking strategies for market regulation and the development of free competition. Therefore, this work aims to carry out a diagnosis and prognosis analysis, from the perspective of Descriptive (Positive) Economic Analysis of Law, of the legislation and its commands related to the fight against cartels and other associated crimes, so common in the Brazilian context, presenting the effectiveness of legal provisions to dismantle and repair the damages caused by organizations involved in corruption cases. Initially, an introduction is presented about what Economic Analysis of Law is, its methodology, and a presentation of applicable microeconomic theories. From the constitutional framework of Free Competition and Economic Order, it mainly addresses freedom in order to guarantee individual rights - property, free initiative, and free competition. Therefore, the research analyzes public contracting as an instrument of intervention in the economy, mainly addressing the Brazilian Competition Defense System. Finally, possible strategies are sought for market regulation and the development of free competition with a trade-off between antitrust and anti-corruption policies essential for the prevention of cartelization, with emphasis on CADE and its role in identifying fraud in public procurement. Lastly, a legislative text analysis is carried out. Through bibliographic research, the legislative contours and framework of cartel practices in public procurement are defined, also identifying forms of investigation and repression. It is concluded that it is possible to employ the resources of Economic Analysis of Law in Competition Law as an economic tool, in order to provide a differentiated approach to the problems presented, with the aim of expanding the realization of the rights to Free Initiative and Free Competition provided for in the Federal Constitution, through minimal intervention.