Administrative Law: A Comprehensive Guide

Posted on Nov 1, 2024 in Law & Jurisprudence

Administrative Law

An Internal Branch of Public Law

Administrative law is concerned with state action and deals with the satisfaction of the public interest.

Definition: The set of rules of conduct imposed coercively by the state. It is the harmonious set of principles and rules of law governing public bodies, agents, and public activities designed to achieve specific, direct, and immediate state objectives.

It is the branch of law that regulates the function of the administrative state, whether or not exerted by the executive branch.

  • Direct Function: Requires provocation.
  • Practical Effects: Acts specifically; rejects abstract action.
  • Immediacy: Refers to the function of the state.
  • State: Corporations have legal personality and are subjects of rights. The state signs administration contracts.
  • Government: Command and direction. It comprises those in charge of the country.
  • Rule of Law: The polity obeys its own laws.

Linked functions of the state created the legislative, executive, and judicial branches.

State Civil Service

It is an activity performed on behalf and in the interest of the people.

Public Administration

  • It is the exercise of administrative activity by all public authorities and entities of the Federation (Federal, State, Federal District, and Municipalities), including legal persons, bodies, and public officials responsible for the exercise of administrative functions.
  • It involves the planning and implementation of public tasks by the government at all levels.
  • Organization of the State refers to the political division of territory, the structure of powers, the form of government, the mode of appointment of rulers, and the guarantee of the rights of the governed.
    • It is the administrative machinery.
    • It is the structure and administrative organization (agents, agencies, entities).
    • It is the activity exerted directly or indirectly by the state.

Administration Organization

  • Public Services: Public transport, mobile telephony, road maintenance, electricity, water, sanitation, public transportation, garbage collection.
  • Administrative activity can be administered centrally or transferred to others.

Administration can be:

  • Centralized (Direct)
  • Decentralized (Indirect)
Direct Administration

Direct administration comprises members of the Federation (Federal, State, Federal District, and Municipalities). The powers are the Executive, Legislative, and Judicial.

All powers exercise administrative functions. For example, the Judiciary conducts public tenders.

Direct administration encompasses all activities conducted directly by the powers in any sphere of the Federation. It is held at:

  • The federal level: President and Ministers of State
  • The state level: Governor and Secretaries
  • The municipal level: Mayor and Secretaries
Indirect Administration

Due to social complexity, it is virtually impossible for all public activities to be performed directly by the central administration. Therefore, the government can create legal entities to perform decentralized functions.

These can be local authorities, public enterprises, joint-stock companies, and public foundations.

Composition:

  • Local Authorities (e.g., USP, Unicamp, IPEN)
  • Public Enterprises (e.g., Federal Savings Bank, INFRAERO)
  • Societies of Mixed Economy (e.g., PETROBRAS, BB, STATE BANK)
  • Public Foundations (e.g., Latin American Memorial, Procon-SP, Pro-Sangue)

These are legal entities created by members of the Federation to perform public functions in a decentralized manner.

General characteristics:

  • Legal personality
  • Own revenue and patrimony
  • Technical, administrative, and financial autonomy
  • Dependence on law for establishment (Local Authority) and permission to create (Public Enterprises, SEM, Foundations)
  • Registration (Commercial or Civil Registry of Legal Entities)
  • Note: Not for profit
  • Local Authority: Legal entity of public law with personal assets and a specific purpose.
  • Public Company: Legal entity of private law composed exclusively of public capital, set up to provide public services or exploit economic activities.
  • Joint Economic Society: Legal entity under private law established for public service or exploitation of economic activity, with mixed capital and a corporate form (S/A).
  • Municipality: Legal entities of public law, endowed with exclusively public capital, with administrative capacity, and set up to provide public service.

Public Services

Public services are provided by the Administration or its delegates under state controls and standards to meet collective interests.

Example: General service (electric power), regular and continuous (without interruption), protecting rights and well-being.

Forms of Provision

  • Direct or Centralized: Provided by the direct administration of the state.
  • Indirect or Decentralized: Provided by indirect government entities or third parties outside the Administration.

Delegation of Public Services

  • Grant: Delegation of service provision made by the grantor through bidding to a person who demonstrates the ability to perform, at their own risk, for a specified period. Example: Grant of a ferry service.
  • Permission: Public power delegated to an individual temporarily through bidding to run a public service at their own risk. Revocable unless otherwise agreed, and does not imply exclusivity. Example: Permission for public transport service.
  • Authorization: Similar to permission but more precarious and less regulated. Example: Taxi services, use of a street for a bazaar, driver’s permit, private guard service.

Administration Contracts

Meaning: Formal (written), consensual, onerous (paid), and commutative (compensation to the parties) adjustments concluded “intuitu personae” (running under the responsibility of the parties) that give rise to rights and obligations.

Validity Requirements: Meeting of minds, capable agent, lawful object, and form prescribed or not prohibited by law.

Public administration can make private or public law contracts. Private law contracts are those provided by law, particularly the Civil Code, such as sale, lease, donation, etc. One basic prerogative of private contracts is the autonomy of will and equal treatment of the parties.

However, in some cases, public administration acts to satisfy public interests when signing a contract. So, some contracts held by public authorities are governed by rules that favor the Administration.

Contracts governed by public law, created for the public interest, are called Administrative Contracts. They have the following characteristics:

  • Involvement of Public Administration
  • Public purpose
  • Adherence to legal procedures
  • Contracts of adhesion
  • Exorbitant clauses
  • Prior bidding (as a rule, on pain of nullity)
  • Advertising
  • Deadline
  • Allowance for extension

Typical Public Administration Contracts:

  • Award contract
  • Public works contract
  • Public service provision contract
  • Supply contract

Exorbitant Clauses

These are privileges granted to the Administration in contracts due to the interests it represents. This puts the Administration in a position of superiority, not arbitrarily, but due to the community interests it represents.

Examples:

  1. Unilateral drafting by the government.
  2. Unilateral modification for public needs with appropriate compensation to the contractor.
  3. Inspection (guiding, monitoring, interdicting, intervening).
  4. Unilateral termination for public interest with appropriate compensation.
  5. Application of sanctions for breaches of obligations.
  6. Extension without further bidding through an amendment.
  7. Unremovable implementation (individual cannot stop work due to non-payment unless delayed more than 90 days, except in public calamity, serious internal disorder, or war).

Bidding

General: The Administration constantly conducts business and contracts. Following the principles of legality, impersonality, morality, publicity, and efficiency, administrative contracts are preceded by bidding.

Law No. 8666/93 sets general rules on procurement and contracts related to administrative works, services, advertising, purchasing, sales, and leases under the authority of Federal, State, Federal District, and Municipalities.

Meaning: Bidding is the administrative procedure for selecting the lowest tender in the community’s interest, as specified in the announcement. It comprises several stages in chronological order to select the most advantageous proposal. The best price is not always the most advantageous.

  • Cannot be secretive
  • Acts must be open and accessible
  • Contents remain confidential until opening
  • Any citizen can track the process without disruption

Purpose:

  1. Obtaining the most advantageous bid (failure can be due to legal issues or unsatisfactory proposals).
  2. Equal opportunity for those wishing to contract (desertion occurs if no interested parties respond to the call).

Object of Bidding: Must be described succinctly and clearly in the notice or invitation letter.

Obligated Entities: Direct public administration (Union, states, municipalities, Federal District), indirect public administration (municipalities, public enterprises, joint-stock companies, etc.), the Judiciary, Court of Auditors, and entities managing public funds.

Bidding Procedures

Types include competition, pricing, invitation, tender, auction, trading, and electronic trading.

  1. Competition: Mandatory for real estate disposals, granting use of public property, and large public works contracts. Open to any interested party.
  2. Price Taking: For average-value contracts, limited to pre-registered or approved stakeholders, requires advertising and pre-qualification.
  3. Invitation: Non-open bidding for small-value contracts, requires inviting at least three interested bidders, allows participation of those registering 24 hours in advance, presumes eligibility of chosen parties.
  4. Tender: Follows specific regulations, open to any interested party through advertising, for selecting technical, scientific, or artistic proposals, awards prizes or compensation, judged by a special commission.
  5. Auction: Open to wide publicity for selling lawfully seized or attached movable goods, the winner offers the highest bid (not less than the evaluated value).
  6. Trading: For common goods and services like bottled water, fuel, cleaning supplies, etc.
  7. Electronic Trading: Uses computers and the internet for virtual auctions.

Criteria for Evaluating Proposals

Generally, the best price. For intellectual services, criteria like “best technique” or “technical and price” can be used. Highest bid applies to asset sales or concessions.

Dispensability of Bidding

Public bodies are generally required to bid. While this can slow down procurement, it is justified by the interests represented and prevents arbitrary decisions.

Definition: Law 8666/93 outlines cases where bidding is not required. This is not just for administrative convenience.

Dispensed Elements: Only the procedure for choosing the best proposal is dispensed. Legal status, technical capability, financial capacity, tax compliance, prior commitment, and the contract must still be observed.

Faculty or Obligation: Entities have a choice, not an obligation.

Illustrative List

  1. War or serious disorder
  2. Emergency or public disaster
  3. Engineering services up to a certain value
  4. Purchases of perishable goods
  5. Lack of bidders

Enforceability of Bidding

Definition: Bidding is impossible due to factual circumstances related to the item, the person hiring, or the person being hired.

Non-requirement of bidding is the circumstance preventing bidding and the search for the best offer to meet public administration goals.

Hypotheses

  1. Acquisition of items only available from a single supplier.
  2. Procurement of specialized technical services.
  3. Employment of recognized artists.

Faculty or Obligation: Not a choice, but a legal recognition that bidding is sometimes unnecessary.

Bidding Phases: Internal and External

  • Internal: Determines the object, conditions, and possible expense.
  • External: Selects the best offer.

Openness

The bidding procedure begins with public knowledge and convening through:

  • Invitation letter (for invitations)
  • Notice with terms (for competition, price, bid, and tender)

Proclamation

The instrument announcing the bidding process, setting conditions, and convening stakeholders.

Qualification (in Competition)

Eligible applicants are admitted based on technical, financial, legal, and fiscal capabilities.

Classification

Formal examination of proposals to ensure they meet the announcement criteria.

Trial

Checks the bidding type and analyzes:

  1. Lowest price
  2. Best technique
  3. Technical and price
  4. Base price

Award

Confers the winning bidder the preference for the future contract, but the Administration can withdraw.

Homologation

Competent authority releases the object of bidding, controlling the process’s merit and legality, confirming validity and interest.

Appeal

Appeal against the trial decision within five working days, with suspensive effect if granted for cancellation or withdrawal.