LEGAL IMPLICATIONS OF THE CONTRATACIÓN WITHOUT PUBLIC LICITATION BY THE PUBLIC ADMINISTRATION

Abstract

From the promulgation of the Federal Constitution of 1988, the investiture in the public employment passes for the approval in the public contest and this forecast, in addition to moralizing, requires the planning of the contracts in the scope of the Public Administration. In this perspective, the study problem presents the following question: What are the administrative consequences of hiring employees to occupy public positions without public competition? This article aims to identify the legal implications for public administration, hiring without public tender for public servants. It was intended to analyze questions such as nepotism and clientelism existing in the cultural heritage of the Brazilian public administration; to situate the questions relating to the constitutional precepts of hiring public servants. The assumptions of the study indicate that the hiring of public servants has as a precept the realization of a public tender foreseen as a moral and legal practice as normative principles. In order to respond to the objectives of the study and the identified problematic, it was decided to carry out a bibliographic investigation based on the theoretical foundations of the authors. The results launched the legal implications, hiring without a public tender, showing that the constitutional precepts prevent the realization of a public tender, based on the right of competence and giving opportunities to the citizen in a fair way to become a public servant through means cool. . In this context, the practices of nepotism and clientelism, inheritance of the former public administration, suffer transformations, subjecting the framework of administrative improbity to the offending public agents, under the risk of nullity of act, fine and loss of position. From this perspective, the study highlighted the need for constitutional precepts in the hiring of public servants. However, in Brazilian municipalities there is a practice of contracting without competence, although the administrative consequences for the contract are recognized, which can lead to the nullity of the act. The Federal Constitution determined the meritocracy model through a public contest to prevent public servants from serving interests other than public service. The principles of public administration constitute a solid foundation, providing for this requirement for hiring as a way to avoid mechanisms of malfeasance and persecution against public servants.