Source: Correio Braziliense - DF - ECONOMY - 11/08/2009

 Project to reform the Organic Law of Public Administration, in force since the military regime, facilitates the bidding and hiring of personnel After more than 40 years, the public administration has the chance to assume for the first time that it can and must be efficient. Criticized for offering low quality services, being too slow and using partnerships with the private sector to allow deviations, the Brazilian state is undergoing a deep institutional review. If applied in full, the new rules will completely change the way the citizen, companies and the server interact with the machine.

At the request of the government, a commission of notables has cleared the legal framework that has governed the official mechanism since the days of the military regime. The proposal for a new Organic Law buries Decree-Law 200/67. Public entities, autarchies, private agents and social organizations assume new roles, having to respect governance goals and rules. What was considered “outdated” by the experts ended up in the trash.

The Courier had access to the draft prepared by lawyers representing the most different schools of law. One of the most important points strengthens the identity of companies and state foundations under private law - whose creation bill is in the National Congress. As per the draft, they are allowed to adopt simplified bidding standards. Following their own regulations, these entities continue to be subject to rules for hiring and competing, but they do not need to assume or mirror Law 8.666 - considered “blind” by lawyers and market analysts.

The system is similar to that adopted by regulatory agencies: neither too loose nor so rigid. “It is a less tied model, but more controlled, for example, than that practiced by Petrobras and Eletrobrás”, says Carlos Ari Sundfeld, a specialist in public law and one of the members of the analysis committee of the new Organic Law for Public Administration . If instituted, the tool will serve to give greater flexibility to entities that are not dependent on the National Treasury or to those that choose to sign autonomy contracts.

gambiarras
Although the document does not represent the official thought of the Planalto Palace, it is the starting point for the discussions that will be held from now on with society. “The intention is to allow the State to be more up-to-date within a concept of democratic governance, taking advantage of what is possible and rejecting what is authoritarian”, summarizes Marcelo Viana, secretary of management at the Ministry of Planning. Without the weight of legal rubble, the proposal opens up almost inexhaustible horizons for a much more proactive role for the bureaucracy.

As it stands, the draft appeals to both Minister Paulo Bernardo (Planning) and the pre-candidate for president Dilma Rousseff (Casa Civil). Considered as developmental managers, Bernardo and Dilma defend the legal review. Both reject the term “management shock” - a reference identified with the Tucan ideology. In a possible PT government starting in 2011, the new Organic Law may support an aggressive administrative reform of the state machine.

Another concern of the group was to allow public and private agents to clearly occupy their positions within the complex public system. In response to gambiarras and legal vacuums, specialists framed the entities that make up the third sector (NGOs, social organizations, support foundations) - considered essential pillars. Looking at the mistakes of the past, the commission indicates the urgent need to make the collaboration contracts between public and private entities more transparent. Maria Coeli Simões Pires, member of the commission and master in administrative law, praises: “Over the years, there have been great advances without these advances being incorporated in a more systematic way in the Brazilian dynamic”

Control
The new law prohibits any possibility of parallel administrations, an evil that especially afflicts public universities in Brazil. The attempt to consolidate the transition from a bureaucratic model to a more managerial model is explicit. In a chapter dedicated exclusively to control, the jurists made a point of including in the text that public administration bodies will continue to be monitored by the Constitution, but their activities are no longer subject to inspections “merely formal or whose cost is greater than the risk”.

In this regard, the draft represents an unprecedented advance, since it condemns overlapping competences and advocates the simplification of procedures. In article 51, the proposal determines that “the control must be compatible with the nature of the controlled organ or entity”, which, in the opinion of scholars, will require a less restrictive posture from the Federal Court of Accounts (TCU). “We haven't stopped working on any hornet's nest. The proposal looks at the administration for the next 20 years ”, says Floriano de Azevedo Marques Neto, another member of the commission. According to him, there are many controllers and the performance of so many agents ends up sucking the vital energy of the administration. “The draft did not start with any ideological vision. He sought to update the institutes in the face of many contemporary challenges, ”he explains.

Self-control and social control (that carried out by civil society) are two other points widely addressed in the draft proposal. The new law strives to regularize the presence of both in the tangle of laws. Parastatal entities (professional corporations and autonomous social services, such as the “S” System) are also analyzed in depth. For Sergio de Adréa Ferreira, one of the seven members of the legal commission, looking at the public administration from the top down, the hierarchy was well distinguished. “Without loosening, we ended the co-management carried out by the control bodies”, he adds.