Contratos de terceirização na administração pública: uma análise comparativa da súmula 331 do TST e o artigo 121 da lei 14.133/2021

Abstract

This paper analyzes how the advent of the new law on public tenders and administrative contracts (Law 14.333/2021), finally pacifies the understanding about the subsidiary liability of the public entity in outsourcing contracts. Outsourcing in the Public Administration arises, above all, from the state's need to do justice to its prerogatives as a provider of public services to the community. In this sense, the trilateral legal relationship, to which it provides itself as the service taker, will oblige it, during the entire contractual execution, to become responsible for supervising the labor, social security and tax charges that are owed to the employer, so that, in the event of default by the contracted company, the public entity does not incur in typical faulty conduct and is held subsidiarily responsible. The subsidiary responsibility is supported by the provisions of Precedent 331 of the SLC (Superior Labor Court), specifically in its item V, which expressly states that it is necessary to prove the faulty conduct of the Public Administration, based on evidence that it failed to comply with the legal obligations imposed on it. Such obligations are provided for in the old law that governed public biddings and administrative contracts (Law 8.666/1993), especially with regard to the supervision of the object of the contract, however a new law was sanctioned to govern these administrative contracts, as a resolutive possibility.