A participação de oscips em licitações públicas: desnaturação da entidade ou fonte de auto-sustentabilidade?

Abstract

This scientific work intends to analyze the constant participation of the OSCIPs (Organizações da Sociedade Civil de Interesse Público, in Portuguese) in the public tender process, considering the noticeable divergences among law teachers about the legality of this interaction. At first, it talks about the related organizations and the Third Sector, establishing four themes in order to provide a better comprehension, in the following sequence: administrative reform and its impulse in the Third Sector growth; OSCIPs regulation, by the Law nº 9.790/99; internal and external control of these entities; and, at last, their disqualification process. In the second chapter, the objective is to analyze the public tender. It has been studied, in the present work, in a segmented way: in the beginning, its regulation; after, its guiding principles, its phases and its dismissal events; and, in the end, the consequences of possible failings or illegal acts identified in the course of its process, per say: the annulment, the repeal, the administrative appeals and the penal sanctions. The last chapter concentrates on the main teaching points about the legality of OSCIPs participation in the public tender process, dedicating itself base and defend a third understanding, whose nature is mixed. To achieve such purpose, three problems must be solved, based on constitutional and administrative principles, on Third Sector Law and on Jurisprudence. With regard to the first issue, it must be based in the fact that the partnership stipulation does not appear as an obligation in all kinds of link between Government and OSCIPs, but only in those ones that have cooperative nature. About the second problem, it must demonstrate that the participation of these organizations in the public tender process, in order to sign contracts (latosensu) with the Government, does not necessarily indicates the change of their finalities. After all, if the object of the public tender is not compatible with the OSCIP‟s finality and if the profits are not given to the directors of the organization, but used on its maintenance and growth, the public tender process will work as a source of self-support for the entity. At last, with regard to the third problem, it must explain that, through the careful and attentive elaboration of the edict terms with the due observation of constitutional and administrative principles, the equality among the participating organizations will not be threatened by the presence of an OSCIP as contestant in the same public tender process.