A responsabilidade do ordenador de despesas diante da Lei Federal nº 14.133/21: a duração dos contratos administrativos e sua relação com as leis orçamentárias

Abstract

The current study aims to analyze the role and responsibilities of expenses orderers in the context of public contracts under the Federal Law 14.133/2021, especially considering the celebration of multi-year contracts. The main goal is to investigate how the budget planning foreseen in the Federal Constitution of 1988 – which stablishes objective rules for its implementation and application through the budgetary laws (Multi-annual Plan, Budget Guidelines Law and Annual Budget Law), and which implies direct participation of the Legislative Branch to build up its normative framework – may be related to the roles of the expenses orderer and materialized through public contracting. The intention is to verify whether the legislative changes occurred regarding public contracting, mainly the introduction of the possibility of multi-year contracts without the corresponding budget forecast, indicated and required by the Federal Constitution, is legally valid and whether the expenses orderer can be held responsible in this new contractual scenario. The need to unravel the constitutionality of multi-year contracts arises due to the State’s responsibility of maintaining economic balance and developing an effective planning to guarantee the safe projection of public expenditure, in order to turn the country into a more suitable environment for public contracting. The study also intends to point out the possibility of holding the public servant designated as expenses orderer responsible along the validity of a multi-year contract. To achieve this goal, the investigation into the constitutionality of the validity of public contracts under the terms of the Tenders and Contracts Law (Law n. 14.133/2021) is developed based on the formulation of assumptions considering auxiliary elements to dogmatic interpretation. These elements include: an overview of the expenses orderer and the limits of his responsibilities; the need to consider the budgetary laws as the legal foundation for all public expenses carried out by the Public Administration; the effective participation of the Legislative Branch in the elaboration of budgetary rules; the way public contracts are carried out. Based on these assumptions, it was possible to analyze the formulation of public contracts and evaluate the issues of their validity, examining their necessary connection with budgetary legislation, as well as the impact of the multi-year stipulation on the exercise of the functions of expenses orderer