Alocação de riscos em contratos de parceria público-privada: a (expressiva) distância entre teoria e prática

Abstract

With the increase of the number of public-private partnership (PPP) projects under development or underway in the different federal entities, the interest on the contractual regulation of the risks inherent to these projects also increases. After analyzing the most relevant features related to risks and presenting the main theoretical standards for their allocation, this paper aims to evaluate in which degree these standards are observed in the practice of contracts formulation and the possible reasons for the discrepancy diagnosed between theory and practice. It is noted that a significant share of the problem lies on the adoption of non-technical postures by public officers and members of governmental agencies responsible for overseeing the processes and on the usual absence of certain specific capacities in the multidisciplinary teams responsible for the project development. In closing, different proposals are presented to improve the decision-making process, pursuing, primarily, to promote the sound economic rationale of the decisions related to risk allocation.