As previously discussed, economic-financial rebalancing, as an instrument for preserving contracts and the very execution of public works, is a guarantee that the equation between obligations and remuneration remains fair and viable, even in the face of unforeseeable factors. The key question that arises is: how has this protection been applied in practice?
In recent years, a series of shocks, from the Covid-19 pandemic to the war in Ukraine, have put the principle of economic-financial balance to the test. The theory of unforeseeability, so often cited in manuals and legal opinions, had to be translated into concrete decisions within real contracts. It was precisely this challenge that prompted the Federal Court of Accounts (TCU) to examine the issue in depth.
Audit Survey No. 008.457/2023-9, consolidated in Ruling (Acórdão) No. 2,135/2023 – Plenary, analyzed how key federal bodies, DNIT, Codevasf, Caixa Econômica Federal, the Ministry of Integration and Regional Development, and the Ministry of Cities, responded to contractual rebalancing claims arising from the effects of the pandemic. The study also incorporated data and contributions from the Brazilian Chamber of the Construction Industry (CBIC) and the Brazilian Institute of Public Works Auditing (Ibraop), which have closely monitored the economic impact on the sector.
For the study, the TCU formulated six key questions, including:
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Did the pandemic cause a significant and lasting increase in costs that disrupted public works contracts?
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Was there a substantial influx of rebalancing claims?
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Were public bodies prepared — normatively and institutionally — to analyze them?
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Did these analyses result in effective rebalancing or in work stoppages?
These seemingly straightforward questions revealed a fragmented landscape: while some agencies responded swiftly with their own regulatory acts, others acted reactively, without standardized technical or legal criteria.
One of the most relevant findings of the report is the lack of uniformity in institutional responses.
Codevasf, for example, reported that prior to the pandemic there were virtually no rebalancing claims, but the scenario changed completely from 2020 onward. Faced with a surge of requests, the company issued two regulations: Resolution No. 254/2022, focused on asphalt paving works, and Resolution No. 690/2022, addressing construction inputs in general. Both aimed to standardize criteria and procedures for analyzing claims.
DNIT, in turn, presented a more consolidated experience. The agency already had specific normative instructions for bituminous materials, such as Service Instruction/DG No. 15/2016, later supplemented by DNIT Resolution No. 13/2021, which established a calculation methodology and criteria for separating asphalt inputs. However, the TCU noted that a global analysis of contracts remains a challenge, especially given the large number of items and the need for detailed technical assessment—a task that, according to the report, requires “rational methods and administrative efficiency.”
Caixa Econômica Federal operates in a unique position, acting as the Union’s agent in transfer agreements. Its internal manual MNAE099 – Engineering (version 49) sets out a detailed workflow for processing claims, requiring a technical opinion from supervision, proof of imbalance, the event’s base date, and item-by-item comparative spreadsheets. Even so, although structured, the process depends directly on the initiative of the grantor (the local public entity) and the robustness of the evidence presented.
At the other end of the spectrum, the Ministry of Integration and Regional Development (MIDR) and the Ministry of Cities had no specific regulations. Their analyses were based on general legislation (Laws No. 8,666/93 and No. 14,133/21) and on ordinances that, during the pandemic, extended deadlines and relaxed execution conditions, without, however, providing formal mechanisms for price recomposition.
Another striking aspect was the survey of state and municipal regulations issued between 2020 and 2022. The TCU mapped more than twenty examples, such as Joint Ordinance SEMOBI/SECONT/PGE/DER No. 004-S/2021 (Espírito Santo), Instruction No. 001/2022 of SINFRA/MT, and Resolution CE No. 012/2022 (Paraíba), among others.
Each of these instruments sought, in its own way, to translate the theory of unforeseeability into objective procedures, introducing technical calculation criteria and parameters to prove excessive onerousness. While this diversity is positive from the standpoint of administrative innovation, it also revealed the absence of a national guiding framework—a gap that underscores the need for normative coordination and the exchange of best practices among public entities.
This landscape of regulatory diversity and institutional asymmetry led the TCU to revisit the theoretical and legal foundations underpinning economic-financial rebalancing. The report devotes a substantial portion to doctrine and case law. Drawing on precedents such as Ruling No. 1,431/2017-TCU-Plenary and Ruling No. 4,072/2020-TCU-Plenary, the Court reaffirmed several consolidated criteria:
Exceptionality: only extraordinary and unforeseeable events justify contractual revision;
Unequivocal proof: the burden of proving the imbalance lies with the claimant;
Global cost analysis: rebalancing cannot be limited to isolated items without considering the contract as a whole;
Excessive onerousness: must be demonstrated by concrete indicators, not presumed;
Prohibition of double recomposition: the same item cannot be both rebalanced and adjusted simultaneously.
These guidelines reinforce the TCU’s view that rebalancing is an exceptional and technical institute, requiring rigorous documentation and analytical substantiation.
Finally, the survey concludes that Brazil still lacks institutional maturity to address economic-financial rebalancing in a uniform and timely manner. The pandemic exposed the fact that many agencies were not prepared to deal with the technical and legal complexity of the issue, resulting in delays, work stoppages, and contractual disputes.
On the other hand, the study highlights important advances. Strengthening contractual governance, using risk matrices, and standardizing technical criteria emerge as promising paths forward. In this sense, the new Public Procurement Law (Law No. 14,133/2021) consolidates this direction by requiring contracts to include specific clauses on risks and deadlines for responding to rebalancing requests.
In the end, the TCU reminds us that rebalancing is not an act of benevolence, but a means of keeping the contractual pact alive; ensuring that works continue, services are not interrupted, and the public interest prevails.
