In their origin, the Brazilian operators started as small entrepreneurs, which had gained a permission from the local authorities. In the long run, fusion processes between the small operators, in part induced by the authorities themselves, have generated the modern Brazilian bus and coach industry. Meanwhile, the operators? licenses have been substituted by more stabile concession contracts. On the other hand, the contract-out procedures can not be considered as really competitive. In the contrary, several clauses in local public transport regulation have secured protection rights for incumbent operators. The licenses and concession contracts themselves rarely have been awarded after an open public procurement procedure.
The edition of a new legal framework for public procurement promises to introduce deep changes, as it foresees the obligatory execution of public procurement procedures for all kind of administrative contracts, especially for concession contracts in public service activities (e.g. public transport). Moreover, these statutes forbid anti-competitive clauses in the rules for the bidding procedures. The selection criteria of the proponents are fixed and shall take in account economic indicators such as fare proposed or financial offer to the authority.
This contribution intends to explain the new legal framework for the
public procurement procedures in Brazil and to discuss its consequences
for the national bus industry. Initially, the historical development of
the sector is briefly exposed under the light of the traditional contract-out
procedures. In a second part, the broad features of the new legal framework
are discussed, especially in regard of securing real competition, of introducing
a rigorous selection process and of the establishment of transparent rights
and duties in the concession contracts. In a third part, the new
legal framework is confronted with the present local regulations. Finally,
the future impacts of the new legislation for the bus industry are assessed.