Escrito por Lara Oliveira (*)
Introduction
The Alternative Dispute Resolution has been one of the competing forms of solving different cases in the world of conflicts. Arbitration, for complex cases, conciliation and mediation for potential problems in families and companies, and Dispute Boards for solving infrastructural problems are examples of the Courtdoor house multisystem established by Frank Sander, professor at Harvard.
Despite all these forms having already been well established in the Brazilian scenario, there was an innovation in the forms of solving infrastructure problems in Brazil: the possibility of alternative dispute resolution carried out by a Court of Accounts, the so-called “Secex-Consenso[1].”
This text tries to introduce (i) what are the constitutional attributions of the Court of Accounts, (ii) what are the attributions of this new type of ADR in the Court of Accounts, and (iii) demonstrates some cases already submitted to the Secretary.
A Constitutional Perspective
The Brazilian Constitution provides rules for the Court of Accounts in Brazil. Article 71 of the Brazilian Constitution establishes that external control is attributed to the Congress, with the assistance of the “Tribunal of Accounts of the Union”, similar – for the sake of clarification – to the Bundesrechnungshof in Germany and the “Auditing Court” mentioned in Article 136 of Spain’s Constitution.
In a short notice, the external control of the “Tribunal of Account of the Union” or Federal Court of Accounts (Tribunal de Contas da União) was provided to be only an external control, for instance: (i) evaluating accounts of administrators, (ii) supervising the application of resources transferred by the Union to the municipalities, and (iii) verifying the application of public contracts.
In any of the cases, there was no explicit norm regarding the possibility of the Tribunal taking action in previous policies of supervision or, as a matter of fact, regarding the possibility of alternative dispute resolution in the external control made by a Court of Accounts.
Of course, that was questioned – by political parties – before the Federal Supreme Court of Brazil. Although the question is still pending, the Federal Prosecutor’s Office has already advocated for the constitutionality of the provision.
The arguments pro-“Secex-Consenso” are: (i) the efficiency of solving main public contract problems, such as infrastructure issues; (ii) the previous possibility of control already made by the Court of Accounts; and (iii) plenty of legislation (such as Brazilian procedural law) defends the use of alternative dispute resolutions in government institutions[2].
The arguments anti-“Secex-Consenso” are: (i) the use of audit of accounts to legitimize the pre-terms of the contract and their possible use in future disputes; (ii) an increase in the attributions of the Federal Court provided in Article 71; and (iii) a reduction in the efficiency of later external control.
Meanwhile, there are 40 cases that have already been submitted to the “Secex-Consenso” (the name can be translated as a consensualism secretary or department). The majority of them are related to infrastructure problems.
Innovations in the “Secex-Consenso” Normative Instruction
There were several innovations regarding the functioning of the Court of Accounts. Nicola Khoury[3], one of the creators of Secex-Consenso, stated that one of the main goals of this new form of dispute resolution is to address infrastructure problems in the most time-efficient way possible.
Arbitration and Dispute Boards have traditionally been the most well-known ADR mechanisms for such issues. However, the Court of Accounts holds specific expertise in public contracts, which contributes to more efficient solutions when compared to arbitration and Dispute Boards, which still lack the comprehensive institutional know-how and infrastructure possessed by the Court.
For that, the Normative Instruction number 90 (2022) provided deadlines significantly shorter. Within a few days – typically up to 90 – the parties can reach a resolution. Therefore, this type of consensual mechanism (Secex-Consenso) proves to be an effective way of mitigating both existing and potential problems in the infrastructure sector, which constitutes the majority of the cases.
Additionally, there is a provision in the Normative Instruction that establishes a 360-day period of post-agreement supervision to monitor the quality of the solution achieved through the Secex-Consenso procedure. No other form of Alternative Dispute Resolution includes such a provision, not even Dispute Boards. The fact that a governmental agency provides this type of follow-up is one of the most remarkable achievements of this consensual division.
Also, both the a) the deadlines and b) the supervision of the quality are atypical means of ensuring the efficiency of public contracts over time.
The “Secex-Consenso” Cases: What Has Worked So Far?
The data[4] of the Court itself demonstrated that, since 2023, there were 40 cases submitted to the secretary. Sixteen had an agreement, four did not have any agreement, eight were not admitted, and the others are still pending.
Most of the cases were related to infrastructural problems: roads, airports, energy power construction, and concession administrative cases. The cases generally involve problems of allocating the risks. In unpredicted causes, such as COVID-19, the problems concern which parties will assume the cost of the issues.
The Court has already been successful in cases such as the road “BR-101” in Rio de Janeiro. The parties agreed to redefine the terms of the contract with the possibility of presenting new agents to assume the problem. The possibility of redefining the terms of the contract is related to assumed costs. This type of problem the “Secex-Consenso” is already solving or, at best, assisting the parties in solving.
So, the consensual form solves some aspects regarding infrastructure problems, such as the possibility of market analyses and improving the efficiency of regulations at the Rio de Janeiro airport.
In the case of São Paulo’s airport (specifically in one city of the state of São Paulo, Guarulhos), there was intervention regarding the increase of infrastructure at the airport. Part of the risks were allocated to the government and the other part to the private agent.
All the cases reveal that the main problem is renewing the terms of the contract and determining who will bear the costs of the new demands that were not initially stipulated in the contract.
Conclusions
This new type of ADR has been essential in solving Brazil’s biggest challenges, such as those related to infrastructure. There is no violation of the constitutional provisions regarding the Court’s attributions, particularly with respect to the prior control of public contracts. Although the Court is established as a public authority to exercise external control, there is no restriction on when such control can be exercised.
The 40 cases already submitted to the Secretary – with clear outcomes – demonstrate that new forms of ADR can be implemented according to the specific needs of each country. In Brazil’s case, addressing the lack of public efficiency is a step toward integrating public authorities into the pursuit of effective results.
Sobre el autor (*): Law student at the Federal University of Paraíba, with experience as a two-time oralist at the Willem C. Vis International Commercial Arbitration Moot. Former research fellow on public-private partnerships, with a background in Brazilian public administration. Currently researches Alternative Dispute Resolution in government institutions and has participated in LabGov, a laboratory focused on public contracts and innovation.
References:
[1] Federal Court of Accounts of Brazil. (2022, December 22). Normative Instruction No. 91, of December 22, 2022: Establishes procedures for consensual resolution of relevant disputes and conflict prevention within the scope of the Federal Public Administration. Official Gazette of the Union, section 1. https://portal.tcu.gov.br/solucao-consensual
[2] JOTA. (2025, June 19). AGU says SecexConsenso is constitutional and defends the department’s operation. https://www.jota.info/executivo/agu-diz-que-secexconsenso-e-constitucional-e-defende-funcionamento-da-secretaria
[3] Federal Court of Accounts of Brazil. (2022, December 27). Consensual dispute resolution – TCU [Video]. YouTube. https://www.youtube.com/watch?v=OLkkiHTpCrw
[4] Federal Court of Accounts of Brazil. (n.d.). Consensual dispute resolution. https://portal.tcu.gov.br/solucao-consensual
Bibliography
- Federal Court of Accounts of Brazil. (2022, December 22). Normative Instruction No. 91, of December 22, 2022: Establishes procedures for consensual resolution of relevant disputes and conflict prevention within the scope of the Federal Public Administration. Official Gazette of the Union, section 1. https://portal.tcu.gov.br/solucao-consensual
- Federal Court of Accounts of Brazil. (n.d.). Consensual dispute resolution. https://portal.tcu.gov.br/solucao-consensual
- Federal Court of Accounts of Brazil. (2022, December 27). Consensual dispute resolution – TCU [Video]. YouTube. https://www.youtube.com/watch?v=OLkkiHTpCrw
- JOTA. (2025, June 19). AGU says SecexConsenso is constitutional and defends the department’s operation. https://www.jota.info/executivo/agu-diz-que-secexconsenso-e-constitucional-e-defende-funcionamento-da-secretaria
