Estruturação de contratos built to suit da administração pública: transposição de estruturas empresariais para o ambiente governamental

Abstract

The dissertation explores the use of the built-to-suit (BTS) contract as a viable alternative for Public Administration to address the current infrastructure deficit in Brazil. In the country, the private sector was the first to adopt BTS contracts, benefiting from asset demobilization and the transfer of construction-related bureaucracies to specialists. The research starts from the premise that BTS modeling is complex and still suffers from a "low degree of regulation of such contracts within the Administration" (Federal Court of Accounts Ruling No. 755/2023 - Plenary). This study aims to list the legal, doctrinal, and jurisprudential requirements necessary for the proper structuring of BTS projects in Public Administration. The research seeks to serve as a bridge between private and public law, ensuring that Public Administration captures the benefits of private BTS contracts while structuring this type of agreement with safety and efficiency. The study is particularly relevant due to the complexity of BTS modeling and the current regulatory uncertainty surrounding BTS contracts in Public Administration, especially after the repeal of Article 47-A of Law No. 12.462/2011 (which expressly authorized the Administration to execute BTS contracts) by the new Public Procurement Law. The study adopts a deductive approach, analyzing current legislation, available literature, and Federal Court of Accounts jurisprudence to map the legal requirements applicable to this type of contract. It also identifies points of convergence between BTS and other public-private partnership models, aiming to incorporate, through a Dialogue of Sources, the wealth of best practices from PPPs and concessions into BTS structuring—an approach useful for addressing potential gaps. The dissertation offers a detailed and practical analysis of the implementation of BTS contracts in Public Administration, highlighting the importance of a well-founded structure that ensures the effective integration of the benefits of this business arrangement into administrative contract clauses.