Alongside the president of the TCU, Gilmar Mendes defends consensualism in the public sector

The dean minister of the Federal Supreme Court (STF), Gilmar Mendes, argued that the mechanisms for consensual solutions for resolving problems and reviewing contracts in the public sector are mature and increasingly valued in Brazil. The speech comes at a time when the STF is analyzing the constitutionality of the Secretariat for External Control of Consensual Resolution and Conflict Prevention (SecexConsenso) of the Federal Audit Court (TCU).

The president of the TCU, minister Vital do Rêgo, participated on Friday, the 29th, in the same panel in which the dean of the STF defended the consensual mechanism, at an event in Portugal. He has also publicly defended the expansion of consensual instruments in public administration.

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“I highlighted the maturation of consensual mechanisms in Brazilian constitutionalism, as well as the growing appreciation of cooperative conflict resolution instruments. I also highlighted the experience of the STF and control bodies in building solutions based on dialogue, capable of promoting greater predictability, legal security and institutional coordination”, wrote Gilmar in his profile on X.

SecexConsenso was created by the TCU in 2022 to enable negotiated solutions to controversies involving public administration. The mechanism has been used in discussions about concessions, infrastructure contracts and other topics considered strategic by the federal government, such as in the renegotiation of Brasília Airport (DF).

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The STF analyzes the Claim of Non-Compliance with Fundamental Precepts (ADPF) 1,183, presented by the Partido Novo, which questions the constitutionality of SecexConsenso. The action claims that the Court of Auditors expanded its powers without specific legal authorization by establishing negotiation and conciliation mechanisms in disputes involving the federal public administration.

The trial was initiated by the STF plenary in April, but is suspended following a request for a review by Minister Cristiano Zanin. As a result, there is still no majority formed nor a forecast for the resumption of the analysis.

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The use of consensual instruments has grown in recent years in control bodies and public institutions, under the argument that negotiated agreements can reduce disputes, accelerate the resolution of impasses and increase legal certainty for long-term investments.

In recent years, the secretariat has participated in negotiations related to contracts for highways, railways, airports and energy projects, becoming one of the main instruments used by the government and the private sector to seek alternative solutions to judicialization.