Estudo quantitativo e probabilístico sobre a combinação entre as noções de previsibilidade de eventos e extraordinaridade dos seus impactos: contribuição para a compreensão da função e aplicação das regras sobre equilíbrio econômico-financeiro de contratos administrativos

Abstract

English Abstract: 
The Brazilian legal theory considers as central for the maintenance of the economic-financial balance of administrative contracts the legal provisions that establish the right to rebalance governmental contracts due to the occurrence of events that are unforeseeable and/or that have extraordinary impacts (article 65, numeral II, letter “d”, of Federal Law 8,666/93 and article 124, numeral II, letter “d”, of Federal Law 14,133/21).

We argue that the main function of these legal provisions is to establish quantitative limits for the burdening of the impact of events outside the contractor’s control in situations in which the risk of the events is borne by him due to the law or the respective contract. These provisions are thus exceptional in relation to the general rule on risk allocation, because they apply precisely to those situations where the risk of events not controllable by the contractor is nevertheless attributed to him.

In this respect, those provisions should act as a hedge, an instrument to set limits on the economic-financial impacts to be borne by parties contracted by the government regarding events that are not under their control but whose risks are transferred to them.

These perceptions about the economic-financial context and the role of article 65, numeral II, letter “d”, of Federal Law 8,666/93, and article 124, numeral II, letter “d”, of Federal Law 14,133/21 are completely new in relation to what has been developed so far by the theory involving these legal provisions.

The clarity about the role of these provisions sheds light on the adequate interpretation of the underlying concepts and permits quantitative and probabilistic analyses about their use.

Therefore, this study quantitatively tested the efficacy of the protection afforded to governmental contractors by combining the concepts of foreseeability of events and the extraordinary nature of the impacts of those events that are not controllable by the contractors but whose risks they bear.

This test is important, for example, to assess whether it is adequate or inadequate the suppression by the new law on public tenders and administrative contracts (Federal Law 14,133/21) of the requirement for the extraordinary nature of the impacts of the event to trigger the protection set forth in its article 124, numeral II, letter “d”.

In the test, we used random data about a hypothetical probability distribution regarding the occurrence of the event and its impacts. We assumed the 95th percentile for situations considered normal from the statistical standpoint, i.e., foreseeable, with ordinary impacts. Our analysis showed that the protection afforded by the combination between the unpredictability of events and the extraordinary nature of their impacts has very weak efficacy, since the scenarios where the protection was triggered happened only above the 99th percentile.

We then varied the percentiles of the events considered normal (predicable and ordinary) to verify the sensitivity of triggering the protections in view of the combination of the concepts of unpredictability of events and the extraordinary nature of their impacts, and reached the conclusion that the combination in question is the reason for the weak efficacy of the protection. We thus concluded that the exclusion by Federal Law 14,133/21 of the requirement for the extraordinary nature of the event as a condition for its risk to be attributed to the government is correct.

The results of our analysis show that from a rational perspective, governmental contractors should not consider the protections set forth in article 65, numeral II, letter “d”, of Federal Law 8,666/93 in pricing their bids in tenders. Indeed, this is a protection whose trigger is so rare that it should never be considered in pricing the contractual subject matter. In the final analysis, these legal provisions establish a hedge for situations that are so rare that no party should be willing to price the assumption of this protection.

The relevance of this study not only involves the conclusions reached, but also the methodology employed. It is the first time in Brazil that quantitative and probabilistic (nondeterministic) mechanisms have been applied to evaluate the rules about the economic-financial balance of contracts. The study undertakes an economic analysis of the law, which is an important advance in a context where legal articles and books generally only talk about economic analysis of the law, but never actually perform that analysis.

Note: Downloadable document is in Portuguese.

Keywords: Equilíbrio econômico-financeiro, distribuição de riscos, contratos, contratos administrativos, hedge, rebalance of contracts, compensation events, risk allocation, government contracts, law and economics, análise econômica do direito