This text is based on findings of irregularity by accessoriness issued by the São Paulo State Court of Accounts.
Introductory remarks
Since 2008[1], the São Paulo State Court of Accounts has been consolidating in its case law a decision-making technique it calls judgment by accessoriness, which allows the tender, the resulting administrative contract and any amendments to be analyzed together.
According to the logic used by the Court, if any irregularity is identified in the tender procedure, the resulting contract will likewise be considered irregular, without any specific assessment of the contractual instrument. The same applies to contract amendments in relation to the contract, so that any audit finding affecting the regularity of the contract will automatically extend to the respective amendments.
This approach, also called the principle of accessoriness, as can be seen from TCE/SP case law, was built on the notion in the Civil Code that assets, when considered in relation to one another, are classified as principal and accessory, the latter being tied to the principal and therefore liable to share the same fate as the former[2].
In this regard, when assessing the regularity of a contract re-ratification instrument, the Court considered that such an act, as an extension of the main transaction, would be tainted by any defects in the original instrument, with the Reporting Member stressing that this situation “was well defined in article 59 of the former Civil Code (‘unless otherwise specifically provided, the accessory thing follows the principal’), whose content, although not expressly repeated in the new Code, finds support in article 92, which maintains the principle that the accessory thing follows the fate of the principal”[3].
Although the rule was initially aimed at assets — a concept that does not encompass legal transactions, regardless of their classification — the principle accessorium sequitur suum principale is present throughout the Civil Code and also applies to the law of obligations.
But in order to assess whether it is appropriate to apply this rule to the acts and contracts analyzed by the Court of Accounts, some general concepts need to be examined in greater depth.
Application of the accessoriness rule in Private Law
As noted above, the classification of assets as principal and accessory derives from article 92 of the Civil Code, which provides that “principal is the asset that exists in itself, abstractly or concretely; accessory, that whose existence presupposes that of the principal”.
The 1916 Civil Code provided on this subject that “unless otherwise specifically provided, the accessory thing follows the principal” (article 59 of the 1916 Civil Code) and, although there is no express rule to this effect in the current Code, civil law scholars understand that this rule remains in force[4].
As can be seen from the legal provisions discussed, accessoriness stems from a relationship of dependence affecting the existence of the asset. Hence the notion that the principal asset exists by itself, abstractly or concretely, not depending on any other fact to remain in the legal world, while the accessory asset necessarily depends on the existence of the principal to coexist in the legal system and, once the principal ceases to exist, it can have no different fate.
In Civil Law, this relationship of dependence is not limited to assets, since “accessoriness may exist between things and between rights, whether personal or in rem”[5], and it applies equally to contracts:
Principal contracts are those that exist autonomously, independently of another. They are, not least by virtue of the principles of autonomy of will and freedom of contract, the general rule in the legal system. By way of exception, there are certain contractual relationships whose legal existence presupposes that of other contracts, which they serve. This is the typical case of suretyship, security deposits, pledges, mortgages and antichresis[6].
Therefore, the classification used for assets can be applied to private contracts which, albeit exceptionally, may be designated as principal or accessory, depending on the type of dependence relationship formed between them.
Application of the accessoriness rule in Public Law
The Public Procurement and Administrative Contracts Law, limited to a much narrower field than the Civil Code, contains no rules on the subject, not least because the general provisions of Private Law apply to administrative legal relationships only exceptionally[7].
In principle, since accessoriness is a rule pertaining to the general theory of contracts, nothing would prevent this distinction from being applied to administrative contracts, provided it is relevant to the assessment being made. In this regard, consider, for example, the accessory nature of a performance guarantee for works in relation to the administrative contract for carrying out a public work (article 56 of Law 8,666/1993).
However, recognizing that accessoriness could apply to Public Law legal relationships — and notably to administrative contracts — does not mean recognizing that it is appropriate to use this concept in the findings of irregularity made by the São Paulo State Court of Accounts. At least not without examining other approaches in greater depth, as discussed in the following sections.
The (non-)existence of accessoriness between the tender and the administrative contract
Starting from the premise that the accessoriness rule would apply in Public Law, it is necessary to analyze whether the dependence relationship required for it to apply is present in the assessments carried out by TCE/SP — more precisely, whether there is dependence between the administrative contract and the tender from which it arose.
The tender, according to Celso Antônio Bandeira de Mello’s classic teaching, is an “administrative procedure by which a governmental entity, intending to dispose of, acquire or lease goods, carry out works or services, or grant concessions or permits for works, services or exclusive use of public property, under conditions previously stipulated by it, calls on interested parties to submit proposals, in order to select the one that proves most convenient according to parameters established and disclosed in advance”[8]. From the idea of an administrative procedure, it also follows that a tender is nothing more than a “sequential and linked succession of administrative acts that all tend towards a final and conclusive result”[9].
The administrative contract, in turn, is “a type of agreement entered into between the Administration and third parties in which, by force of law, agreed clauses or the type of object, the continuation of the relationship and the pre-established conditions are subject to changing requirements of public interest, safeguarding the financial interests of the private contracting party”[10]. Before being administrative, it is a contract, a legal relationship established between one or more parties which, by its nature, departs from the concept of an administrative act pertaining to tenders.
What characterizes an administrative contract, therefore, is not the fact that it arises from a tender procedure, a fact which, although relevant, is not noteworthy for the purpose of defining the institution. An emergency contract arising from direct contracting through a waiver (article 24, item IV, of the General Procurement Law) or a contract arising from accreditation through non-requirement of tender (article 25 of the General Procurement Law) is also administrative.
Nor is the distinguishing feature for defining contracts as administrative the presence of the Public Administration as a contracting party, since public entities are recognized as able to enter into private contracts. It is close subjection to the law and the possibility of the contractual relationship being destabilized by changes in the public interest that qualify a given contract as administrative.
This means that, although the tender is, as a rule, the original source of administrative contracts, there will be no immediate dependence relationship between them such that any irregularity in the tender procedure would taint the validity of the respective contract.
In this regard, the legislator saw fit to draw a chronological line between these acts and legal transactions, corresponding to the procedure for approving the tender, provided for in article 43, item VI, of Law 8,666/1993, followed by the award of the contract’s object to the winner of the tender.
The act of approval, as Carlos Ari Sundfeld notes, has a dual content, since “on the one hand, it declares its validity, its compliance with the regulatory requirements” and “on the other, it decides to contract”[11]. In other words, it is the Administration’s judgment of the legality of the entire tender procedure, and “if it complies with the law and the tender notice, the higher authority will order the award of the tendered object to the first-ranked bidder, but if it finds any illegality it will refuse to approve the evaluation and will invalidate the irregular act or the entire procedure, as the case may be”[12].
Therefore, the act of approval is in itself a form of control over the legality of the tender, so that no irregularity can arise from it to taint the resulting contract. In the face of an irregularity, it is up to the authority to validate or invalidate it, depending on the severity of the defect identified, as Hely Lopes Meirelles explains:
The authority will have three alternatives before it: confirm the evaluation by approving it; order the ranking to be corrected in whole or in part, if it finds a correctable irregularity in the evaluation; or annul the evaluation, or the entire tender procedure, if it encounters an incurable irregularity prejudicial to the tender at any stage[13].
It thus seems correct to say that the identification of any irregularity in the tender cannot extend to the resulting contract, since the act of approval, as a typical internal control, will remedy the defect while still in the tender phase. From this perspective, there is no accessoriness that would carry over any irregularity in the tender to the administrative contract.
Accordingly, it does not seem to us that the decision-making technique or principle of accessoriness can be applied as grounds for declaring a contract irregular due to a defect or flaw found in the tender, given the absence of a dependence relationship affecting the existence of either, except in the specific cases of nullity, which will be addressed in a separate section.
The discussion of accessoriness between the contract and its amendments
It was noted earlier that accessoriness is also applied by TCE/SP to judge the regularity of amendments in relation to the respective contract, so that an irregularity affecting the latter would extend to the amendments entered into, making them irregular as well.
Starting from the assumption that accessoriness applies where there is a dependence relationship between the assets, rights or legal transactions assessed in relation to one another, there is indeed a difficulty in understanding the subject.
This is because the connection between amendments and the contract from which they derive is not necessarily one of dependence, since they formalize the same legal relationship. The contract and the amendments are, first and foremost, a type of instrument capable of formalizing a legal transaction.
The difference may be subtle, but it is relevant to the assessment being made here. While accessoriness covers different legal relationships connected by a bond of dependence, the link between a contract instrument and its amendments is one of continuity; both are mechanisms inherent to the same legal transaction.
But if the contract and the amendment formalize instruments of a single (and the same) legal relationship, it could be argued that dependence would not even be necessary, and there would be no reason to invoke accessoriness, since if there is a defect in the contract, its amendments would automatically be tainted because they concern the same legal transaction. And, yes, the answer may be affirmative, depending on the analysis of the specific case.
However, examining the subject in greater depth to answer this question necessarily involves assessing, even if briefly, the theory of nullities applied to administrative acts and contracts, as well as the scope of the decisions of the Courts of Accounts when they assess the regularity of these acts and contracts.
Some aspects of the theory of nullities in Administrative Law
This article does not intend to revisit the extensive analysis that legal scholarship has long carried out on the application of the theory of nullities in Administrative Law, but merely to clarify some aspects fundamental to the analysis of the subject at hand.
In this regard, it should be recalled that there are many classifications in Public Law for dealing with the validity or invalidity of an administrative act or contract; the categorization adopted here is that of Celso Antônio Bandeira de Mello.
For the author, invalid acts are classified as non-existent acts, null acts and voidable acts, depending on the degree of harm they represent to the public interest. Non-existent acts are those affected by a defect placing them in the realm of legal impossibility, while the distinction between null and voidable acts centers on whether or not they can be validated and the defect remedied. The author also identifies the category of irregular acts, which have less significant flaws, generally related to some formal error.
The classification presented above is also developed by legal scholarship with regard to the legal consequences of these acts. In this sense, non-existent acts would have defects of such notorious seriousness that they would not even produce effects[14]; null acts, once recognized as such, would have their effects undone upon invalidation; voidable acts could have their defect remedied and their effects validated, as could irregular acts[15].
The consequences of identifying an invalid act or contract, based on the classification presented above, are directly related to whether or not judgment by accessoriness is possible, given the idea of dependence brought up by TCESP to extend the effects of its decisions.
The accessoriness thesis, as already noted, is applied to judging the regularity of an act or contract. But before proceeding, a brief clarification on the judgment of regularity is in order.
The Organic Law of the São Paulo State Court of Accounts (Complementary Law No. 709/1993) applies the judgment of regularity only to its power to judge accounts (article 71, item II, of the Federal Constitution), when it authorizes it to rule on their regularity, regularity with qualifications or irregularity (article 32 of the Complementary Law).
This classification, therefore, is not aimed at the analysis of acts and contracts in isolation, but at the judgment of accounts, which is a specific power among many others provided for in article 71 of the Federal Constitution and article 2 of Complementary Law No. 709/1993. All the body’s other powers remain subject to review for legality, legitimacy and economy.
In this sense, if any conflict between the act (under review) and the law is identified, from any of the perspectives referred to above (legality, legitimacy or economy), the act will be defective, which in turn requires an analysis of the scope and harmfulness of the defect identified in order to decide whether or not it should remain in the legal system.
As a result of this analysis, if a cause of nullity is identified — which, as seen, requires the act to be removed from the legal system — its effects may extend to acts that have a dependence relationship with it or, even if they do not, are correlated with one another.
The Procurement Law does not depart from this reality when it provides, for example, that “the declaration of nullity of the administrative contract operates retroactively, preventing the legal effects it would ordinarily produce, in addition to undoing those already produced” (article 59), and that “the nullity of the tender procedure entails that of the contract” (article 49, §2).
Note that the law expressly sets out a general rule of Law regarding the effects of invalidating null acts[16], which does not apply to the identification of a cause of voidability that may be validated and, even less so, to mere irregularities.
Therefore, it is not because the tender presented an “irregularity”, in the generic sense used by TCE/SP, that the resulting contract will be tainted by the defect. Only the identification of a cause of nullity, which authorizes the invalidation of the act and all its effects, can be broad enough to cover the subsequent act, even if the accessoriness thesis is completely disregarded.
Final remarks
Although the Court of Accounts’ judgments refer to an analysis of regularity, its assessment is broader and in fact amounts to assessing the legality of the act/contract subject to review. Legality review — which is only one of the possible criteria of the oversight exercised by the Court of Accounts — concerns the validity of the act, thus authorizing these bodies to identify acts that may be non-existent, null or voidable (in addition to merely irregular).
The scope of the type of order in each situation, however, differs in practice, both in relation to the type of defect found and in the treatment of the effects produced. As has been seen, the invalidation of an act and its consequences will only be possible when a cause of nullity is identified — in cases of voidability or irregularity, remedying the defect is the way forward.
In this sense, the accessoriness rule, as a judgment technique or weighing principle, should be used sparingly by the Courts of Accounts, since it does not have the scope intended and shown especially in TCE/SP case law, quite apart from the clear problem related to the parties’ right of defense, which is limited by the absence of a specific assessment of each act performed.
Finally, it is worth noting that even if a cause of nullity is identified during review, it is not for the Courts of Accounts to immediately invalidate the act[17], a power that rests primarily with the Public Administration, without ruling out, where appropriate, the liability of the official who fails to comply with its order.
References
BANDEIRA DE MELLO, Celso Antônio. Curso de direito administrativo. 27th ed. São Paulo: Malheiros, 2010.
DINIZ, Maria Helena. Código civil anotado. 14th ed. São Paulo: Saraiva, 2009.
FREIRE, André Luiz. Manutenção e retirada dos contratos administrativos inválidos. São Paulo: Malheiros, 2008.
GAGLIANO, Pablo Stolze and PAMPLONA FILHO, Rodolfo. Novo curso de direito civil. Volume IV. Tome I. Contratos: Teoria Geral. 10th ed. São Paulo: Saraiva, 2014.
GONÇALVES, Carlos Roberto. Direito civil brasileiro. Volume 1 – Parte Geral. 10th ed. São Paulo: Saraiva, 2012.
MEIRELLES, Hely Lopes. Direito administrativo brasileiro. 24th ed. São Paulo: Malheiros, 1999.
SUNDFELD, Carlos Ari. Licitação e contrato administrativo. São Paulo: Malheiros.
ZANCANER, Weida. Da convalidação e da invalidação dos atos administrativos. São Paulo: Malheiros, 1990.
[1] There are judgments prior to this date; however, according to the case law search conducted using the tool provided by the São Paulo State Court of Accounts, judgments on the subject appear more frequently from 2008 onwards.
[2] See article 92 of the Civil Code: “Principal is the asset that exists in itself, abstractly or concretely; accessory, that whose existence presupposes that of the principal”.
[3] See: TCE/SP. TC n. 13516/026/02. Reporting Member Fúlvio Julião Biazzi. Session of 09/14/2009.
[4] See: “The accessory thing logically and obviously follows the principal (RT, 177:151); although there is no express legal provision on the matter, this principle is inferred from an analysis of the legal system” (DINIZ, Maria Helena. Código civil anotado. 14th ed. São Paulo: Saraiva, 2009. p. 137).
[5] GONÇALVES, Carlos Roberto. Direito civil brasileiro. Volume 1 – Parte Geral. 10th ed. São Paulo: Saraiva, 2012. p. 189.
[6] GAGLIANO, Pablo Stolze and PAMPLONA FILHO, Rodolfo. Novo curso de direito civil. Volume IV. Tome I. Contratos: Teoria Geral. 10th ed. São Paulo: Saraiva, 2014. p. 70.
[7] See article 54 of Law 8,666/1993: “The administrative contracts governed by this Law are regulated by their clauses and by the precepts of public law, with the principles of the general theory of contracts and the provisions of private law applying to them on a supplementary basis”.
[8] BANDEIRA DE MELLO, Celso Antônio. Curso de direito administrativo. 27th ed. São Paulo: Malheiros, 2010, p. 526.
[9] BANDEIRA DE MELLO, Celso Antônio. Curso de direito administrativo. 27th ed. São Paulo: Malheiros, 2010, p. 487.
[10] BANDEIRA DE MELLO, Celso Antônio. Curso de direito administrativo. 27th ed. São Paulo: Malheiros, 2010, p. 621.
[11] SUNDFELD, Carlos Ari. Licitação e contrato administrativo. São Paulo: Malheiros, p. 178.
[12] MEIRELLES, Hely Lopes. Direito administrativo brasileiro. 24th ed. São Paulo: Malheiros, 1999, p. 280-281.
[13] MEIRELLES, Hely Lopes. Direito administrativo brasileiro. 24th ed. São Paulo: Malheiros, 1999, p. 281.
[14] See: “In short, non-existent acts do not introduce legal rules; they really do not exist in the positive legal system as legal acts; therefore, they will not be sources of legal effects (rights, duties, claims, etc.). That is, they are not administrative acts, and it is not even possible to consider their invalidity (which, it bears repeating, presupposes existence)” (FREIRE, André Luiz. Manutenção e retirada dos contratos administrativos inválidos. São Paulo: Malheiros, 2008. p. 77-78).
[15] See: “The principle of legality aims for the legal order to be restored, but does not establish that the legal order must be restored by extinguishing the invalid act. There are two ways of restoring the legal order violated by invalid acts, namely invalidation and validation. Indeed, it seems more consistent with restoring legality, at least when dealing with acts that can be repeated without defects, to restore it in the present by correcting the act rather than by striking it down. Thus, the principle of legality does not necessarily call for invalidation or validation, since both are ways of restoring the violated legal order” (ZANCANER, Weida. Da convalidação e da invalidação dos atos administrativos. São Paulo: Malheiros, 1990. p. 54).
[16] See article 169 of the Civil Code: “A null legal transaction is not subject to confirmation, nor is it cured by the passage of time”. Article 184 of the Civil Code is also worth mentioning: “Respecting the intention of the parties, the partial invalidity of a legal transaction shall not affect its valid part, if severable; the invalidity of the principal obligation entails that of the accessory obligations, but the invalidity of the latter does not entail that of the principal obligation”.
[17] In this regard, it is worth mentioning a decision of the Federal Supreme Court on the subject: “To begin with, it should be considered that the Federal Court of Accounts is not an administrative court, in the French sense, with the power to resolve disputes as a last resort. The principle that access to the courts cannot be excluded prevents such an equivalence, in addition to which the powers of this body are duly delimited constitutionally in art. 71 of the Constitution, which, in the relevant part, provides: (…) Specifically regarding the case at hand, item IX of art. 71 of the Constitution provides the core of the TCU’s prerogatives in examining administrative acts and transactions. Its powers include setting a deadline for the body or entity to take the measures necessary for the exact fulfillment of the law, if an illegality is found. (…) According to STF case law on this item, ‘the Federal Court of Accounts, although it does not have the power to annul or suspend administrative contracts, has the competence, under art. 71, IX, to order the administrative authority to annul the contract and, where appropriate, the tender from which it originated’” (MS 23,550, judgment drafted by Justice Sepúlveda Pertence, decided on 4/4/02, Plenary, DJ of 10/31/01). (STF, MS 26000, Reporting Justice: DIAS TOFFOLI, First Panel, decided on 10/16/2012, emphasis added).
Article originally published on the JUS portal (in Portuguese), on 05.13.2020.
