Judicial Control of Administrative Discretion: A Parallel with the Role of Public Agents in Bidding Processes and Articl
Posted: Wed Feb 19, 2025 5:08 am
Administrative discretion is a central concept in Administrative Law and in the actions of public officials. It refers to the margin of freedom that the administration has to decide, within the limits of the law, what is the best solution to satisfy the public interest. However, this freedom is not absolute and must be exercised in compliance with constitutional principles, such as legality, impartiality, morality, publicity and efficiency. In addition, judicial control of administrative discretion is an important tool to prevent abuse and arbitrariness.
This article explores the concept of administrative discretion, how judicial control is currently exercised and how it relates to the actions of public officials, especially in the context of public procurement processes, in light of articles 20 to 28 of the Law of Introduction to the Rules of Brazilian Law (LINDB). The LINDB brought fundamental guidelines for holding public officials accountable, while providing greater legal certainty in decision-making, seeking to balance administrative discretion with israel telegram data protection against disproportionate liability, promoting more efficient and well-founded decisions.
2. Administrative Discretion: Definition and Evolution
Historically, administrative discretion was understood as a space of autonomy given to the public manager to make decisions based on practical circumstances and the public interest. In early 19th century France, so-called “government acts” and “political acts” were considered immune to judicial review, as it was believed that these acts directly reflected the sovereignty of the State. Only acts that violated individual rights were subject to judicial review, while those that involved broader public interests were beyond the reach of such control 1 .
Over time, this concept has evolved. With the strengthening of the rule of law and the need to subject state action to stricter rules, it has become accepted that discretionary acts of public administration should also be controlled, albeit to a limited extent. Judicial control, therefore, began to verify whether the public administrator acted within the limits of legality and constitutional principles, such as reasonableness, proportionality and morality, preventing discretion from being confused with arbitrariness.
The evolution of judicial control of discretion in Brazil followed the trajectory of the development of Administrative Law itself. During the 20th century, especially with the consolidation of the Social State of Law 2 , the doctrine began to distinguish between discretion and arbitrariness. Celso Antônio Bandeira de Mello 3 , one of the main Brazilian doctrinaires, reinforces that discretion exists when the legislator grants the administrator the possibility of choosing between more than one valid solution to serve the public interest. This choice, however, must always be based on and guided by constitutional principles.
Case law has also adopted a more rigorous stance regarding the control of discretionary acts. Although the Judiciary cannot replace administrative merit, that is, it cannot choose in place of the administrator, it has the duty to verify whether the choice was made within the limits of legality, morality and reasonableness. This means that administrative acts that present a deviation from their purpose, lack adequate motivation or that violate fundamental rights may be invalidated by the Judiciary.
The inclusion of articles 20 to 27 in the Law of Introduction to the Rules of Brazilian Law (LINDB) 4 brought a new perspective to this control, by establishing clearer rules for holding public agents accountable and reinforcing the need to consider the practical consequences of decisions, both in the administrative and judicial spheres.
3. Discretion in Public Procurement Processes
Administrative discretion is particularly relevant in the context of public procurement processes. Law No. 14,133/2021 (New Procurement Law) establishes a set of procedures aimed at ensuring transparency, equality and competitiveness in public procurement. However, within this regulatory framework, public agents have a margin of discretion to make decisions on the selection of suppliers, evaluation of proposals and conclusion of contracts.
This article explores the concept of administrative discretion, how judicial control is currently exercised and how it relates to the actions of public officials, especially in the context of public procurement processes, in light of articles 20 to 28 of the Law of Introduction to the Rules of Brazilian Law (LINDB). The LINDB brought fundamental guidelines for holding public officials accountable, while providing greater legal certainty in decision-making, seeking to balance administrative discretion with israel telegram data protection against disproportionate liability, promoting more efficient and well-founded decisions.
2. Administrative Discretion: Definition and Evolution
Historically, administrative discretion was understood as a space of autonomy given to the public manager to make decisions based on practical circumstances and the public interest. In early 19th century France, so-called “government acts” and “political acts” were considered immune to judicial review, as it was believed that these acts directly reflected the sovereignty of the State. Only acts that violated individual rights were subject to judicial review, while those that involved broader public interests were beyond the reach of such control 1 .
Over time, this concept has evolved. With the strengthening of the rule of law and the need to subject state action to stricter rules, it has become accepted that discretionary acts of public administration should also be controlled, albeit to a limited extent. Judicial control, therefore, began to verify whether the public administrator acted within the limits of legality and constitutional principles, such as reasonableness, proportionality and morality, preventing discretion from being confused with arbitrariness.
The evolution of judicial control of discretion in Brazil followed the trajectory of the development of Administrative Law itself. During the 20th century, especially with the consolidation of the Social State of Law 2 , the doctrine began to distinguish between discretion and arbitrariness. Celso Antônio Bandeira de Mello 3 , one of the main Brazilian doctrinaires, reinforces that discretion exists when the legislator grants the administrator the possibility of choosing between more than one valid solution to serve the public interest. This choice, however, must always be based on and guided by constitutional principles.
Case law has also adopted a more rigorous stance regarding the control of discretionary acts. Although the Judiciary cannot replace administrative merit, that is, it cannot choose in place of the administrator, it has the duty to verify whether the choice was made within the limits of legality, morality and reasonableness. This means that administrative acts that present a deviation from their purpose, lack adequate motivation or that violate fundamental rights may be invalidated by the Judiciary.
The inclusion of articles 20 to 27 in the Law of Introduction to the Rules of Brazilian Law (LINDB) 4 brought a new perspective to this control, by establishing clearer rules for holding public agents accountable and reinforcing the need to consider the practical consequences of decisions, both in the administrative and judicial spheres.
3. Discretion in Public Procurement Processes
Administrative discretion is particularly relevant in the context of public procurement processes. Law No. 14,133/2021 (New Procurement Law) establishes a set of procedures aimed at ensuring transparency, equality and competitiveness in public procurement. However, within this regulatory framework, public agents have a margin of discretion to make decisions on the selection of suppliers, evaluation of proposals and conclusion of contracts.