Eficiência e consensualidade na administração pública: uma análise da secretaria de solução consensual do TCU na redução de custos de transação

Abstract

Brazilian Public Administration, founded on the paradigm of unilateralism and imperativeness, faces an efficiency crisis marked by decision-making paralysis and high transaction costs. Given this scenario, this dissertation investigates consensuality as a mechanism for inducing efficiency, analyzing the performance of the Secretariat of Consensual Solution and Conflict Prevention (SecexConsenso) of the Federal Court of Accounts (TCU). The objective is to test, from the perspective of the Economic Analysis of Law (EAL), the hypothesis that SecexConsenso functions as a "Coasean public firm," reducing transaction costs (of information, bargaining, and enforcement) in complex disputes. Chapter 1 traces the historical evolution of the TCU, from a formalist body to its expanded role under the 1988 Constitution, which, while demanding efficiency control, also generated the phenomenon of "control hypertrophy." Chapter 2 provides the theoretical foundation for the paradigm shift in Administrative Law, overcoming dogmas such as the absolute supremacy of public interest and strict legality, to consolidate consensuality as an autonomous category, supported by the new normative ecosystem (CPC/2015, Mediation Law, and notably, Art. 26 of LINDB). Chapter 3, the empirical core, analyzes the functioning of SecexConsenso (TCU IN No. 91/2022) and its results. The findings show that the Secretariat's actions are heavily concentrated (about 76%) in concession and infrastructure contracts, sectors of high complexity with "specific assets" where transaction costs are highest. The analysis of SecexConsensos’s data and paradigmatic cases proves the body's ability to unlock investments and generate legal-economic security. Finally, it is concluded that the institutionalization of consensus within external control is a rational response to decision-making paralysis, aligning oversight with the constitutional principle of efficiency and enabling the swift realization of the public interest.