Desafios da adaptação institucional: um estudo do impacto da Lei de Consórcios Públicos no estado de São Paulo

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Fonseca, Francisco César Pinto da
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The Law N. 11.107/2005, which changed the article 241 of the Federal Constitution of 1998, intended to allow to consortia widen their acting potential, ending their institutional fragility. It aimed to guarantee, among other issues, the accomplishment of obligations taken over by the institution members and the participation of the three levels of Federation, allowing their constitution as juristic persons in consortia of public law or private law. Resulting of a process of articulation viewing its regulation, the Law of Public Consortia represented the tentative of improvement of the “cooperative” federalism model in Brazil. However, those possibilities either were not used as source of resources for some experiences yet or they have being slower than expected. Due to this alteration, the law was thought to represent a motor to drive the development of new consortia as well as to improve already set entities, which would adopt a new personality of public consortium. Based upon this problematic, the present work aims to carry out a study about the adaptation process of public consortia to the Law N. 11.107/2005 from the historic neo-institutionalism point of view, with emphasis on the investigation of three experiences of consortia in the state of São Paulo, which have not converted to public consortia according to the law. In short, it was possible to conclude that the Law has not created a set of instruments to improve existing experiences, besides it presents a list of possible advantages, but it created a new agreement arrangement between the states. Those experiences which have been developing through the last forty years without legal instruments specific to their functioning – hence with more flexible structures – have presented a behavior of deliberated negative to the adaptation to the formal instruments that the Law introduced to them. Thus, to understand the way the consortia preexisting to the Law N. 11.107/2005 have recognized the possibilities regulated by this new legal mark; the way the path of those arrangements may influence their behavior regarding to the law; and the own Public Consortia Law path, has presented as an unexplored study and has constituted as the main direction to the discussion in this work.

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