THE CRIME OF FRAUD IN BID-RIDDING OR ADMINISTRATIVE CONTRACTS IN ART. 337-L OF THE PENAL CODE: ANALYSIS OF ITS LEGAL OBJECTIVITY AND THE PUBLIC ADMINISTRATION AS A PASSIVE SUBJECT OF THE LEGAL GOOD OF CONSUMER RELATIONS

Abstract

The crime of fraud in bid-rigging or administrative contract as stated in art. 337-L of the Penal Code, which updated the revoked art. 96 of Law 8,666/93, criminalizes five commissive conducts in the execution of the administrative contract, which happens in the context after the procedure bid-rigging process and, therefore, the nomenclature of the criminal type is erroneous, given that it can mislead interpreters into imagining that it punishes the conduct that meets the current nomenclature of “frustration of the competitive nature of the bid-rigging”, which was traditionally provided for in art. 89 of Law 8666/93 and which was referred to art. 337-F of the Penal Code, a crime popularly known as “tender fraud”. In the five sections of the crime, it should be noted that there are similarities with crimes against consumer relations, as stated in art. 7 of Law 8.137/90 and in the crimes of Law 8.078/90. Traditional doctrine understands that the crime of art. 337-L of the Penal Code mainly protects the legal good of the public administration in the execution of the administrative contract. Part of the administrative doctrine, although resistant to recognizing the public administration as a “consumer” for the purposes of the Consumer Protection Code, based on the premises analyzed in the present study, concludes that on certain occasions in which there is technical, scientific or factual vulnerabilities of the administration as the final recipient vis-à-vis the contracted party, the public administration can figure as a consumer for the purposes of the CDC and, when it comes to criminal purposes, it requires protection of the legal goods of consumer relations. Therefore, in addition to the traditional legal goods of public administration and free market (this depending on the specific case as discussed), the crime of fraud in bid-rigging or administrative contracts in article 337-L of the Penal Code, when technical, scientific or factual vulnerability is identified, the Administration, in a given specific case, figures as a consumer, and the crime aims to protect the legal good of the State's consumer relations in the execution of the administrative contract, concomitantly or not with the legal interest of the public administration.