This article analyzes the possibility of contractual rebalancing in situations involving substantial errors committed by entities when contracting engineering works and services under the integrated contracting regime. The article explores the application of the theory of unpredictability as a legal basis for preserving the economic and financial balance of contracts, without compromising legal certainty. The research is based on the case law of the Federal Court of Auditors (TCU), with emphasis on Ruling 2429/2024 – Plenary, and on the applicable legislation. The objective is to promote reflections on the aforementioned judgment, contributing to the prevention of litigation and the improvement of practices related to the contracting of engineering works and services.
Keywords: State-owned companies. Integrated contracting. Substantial error. Theory of unforeseeability. Contractual rebalancing. Federal Court of Auditors.
1. INTRODUCTION
The contracting of engineering works and services under an integrated regime, pursuant to Law No. 13,303/2016 (State-Owned Companies Law) , has been widely adopted by public companies and iran telegram data mixed-capital companies, especially in large-scale projects. This regime, as provided for in article 43, item VI , [1] is especially indicated for projects of a predominantly intellectual nature, which involve technological innovation or allow execution with different methodologies or technologies of restricted domain in the market. It is characterized by the joint contracting of the basic and executive project with the execution of the work, presenting advantages such as greater speed in bidding procedures, reduction of interfaces between different stages of the project and concentration of responsibilities in a single contractor.
Although it presents undeniable benefits, integrated contracting does not eliminate the recurring problems of public works. As pointed out by the Federal Court of Auditors (TCU) in Ruling No. 2433/2016 – Plenary [2] , factors such as corruption, lack of preparation of public agents, budgetary restrictions and the actions of unsuitable or technically unprepared companies continue to negatively impact contract execution, regardless of the regime adopted.
Additionally, the use of this model heightens concerns related to the correct allocation of risks. In particular, the possibility of contractual imbalances arising from errors or relevant omissions in the data provided by the Administration during the preparation phase of the invitation to bid is discussed. Such inconsistencies, if substantial, may compromise the feasibility of the object and cause significant losses to the contractor, reflecting on the achievement of the public interest.
In view of these circumstances, the theory of unpredictability, based on the rebus sic stantibus clause and enshrined in articles 478 to 480 of the Brazilian Civil Code [3] , emerges as an essential legal instrument for restoring the economic and financial balance of contracts. This institute allows for the reexamination of contractual conditions when supervening, extraordinary or unforeseeable events — or even foreseeable events, but with incalculable consequences — result in excessive burdens for one of the parties, altering the conditions initially agreed upon. [4]
This article analyzes how the theory of unpredictability can support contractual rebalancing in cases of substantial errors attributed to entities, particularly in defining the boundary conditions that support integrated contracting. Based on the case law of the Federal Court of Auditors (TCU), especially in Ruling 2429/2024 – Plenary, and on the applicable legislation, we seek to understand the characteristics of these errors, the criteria for measuring excessive burdensomeness and the measures that can provide greater legal certainty to state-owned companies' contracts.
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