Contratação direta da Petrobrás no pré-sal: análise constitucional das implicações para a livre concorrência e para o desenvolvimento econômico do setor

Abstract

The Federal Constitution stipulates that the right to develop research and the economic exploitation of oil deposits is monopoly exclusive to the Union. However, the Union is allowed to contract with state or private companies to conduct research and mining Oil deposits. In this context, Federal Law 12,351 of December 22, 2010 (Pre-salt Law) was enacted, which established the normative targets for the exploration and production of oil, natural gas and other hydrocarbons in the Pre-salt under the system of production sharing. The Pre-salt Law brought the possibility of contracting Petrobras directly by the Federal Government, without a bidding procedure. This form of contracting is an exception to the constitutional rule of mandatory bidding procedure. This is because it should only be put into practice in cases where the CNPE identifies that the direct contracting will be beneficial to the preservation of the national interest and to the fulfillment of the objectives of the energy policy. Thus, the present study analyzes whether the direct contracting of Petrobrás in the Pre-salt is in line with the constitutional principles pertaining to the Public Administration in Brazil, foreseen in art. 37, caput, of the Federal Constitution, with the principle of mandatory bidding, contained in art. 37, item XXI, of the Magna Carta, and with the guiding principles of the bids, contained in art. 3 of Federal Law No. 8,666 of June 21, 1993. It also assesses whether Petrobrás's direct contracting institute to operate in the pre-salt oil reserves may have an impact on the sector's competition, in light of the principle of Competition, provided for in art. 170, item IV, of the Federal Constitution, with special attention to the possible weakening of the rhythm of investments and the development of the pre-salt oil industry. Thus, this study recommends the adoption of a strict technical procedure for the application of direct contracting in the Pre-salt in concrete cases, as long as the legal provision that allows it is in force. Finally, it concludes by the need to withdraw this legal provision from the legal system, in order to avoid the consolidation of serious damages to the development of the Pre-salt sector, the economic agents, the State and the country's economy.