PUBLIC-PRIVATE PARTNERSHIPS MODELED EXCLUSIVELY WITH PUBLIC SECTOR CAPITAL CONTRIBUTION: BETWEEN LEGISLATIVE RIGIDITY AND ECONOMIC PLASTICITY

Abstract

Objective: To examine the legal and economic feasibility of public-private partnership (PPP) models structured exclusively with public-sector capital contributions, without ongoing monetary consideration, assessing their compatibility with Law No. 11,079/2004 and the financial logic of infrastructure projects.

Method: A qualitative approach with a deductive method is employed, using a monographic procedure and documentary research, including literature review, legislative analysis, and opinions issued by oversight bodies regarding the use of capital contributions in PPPs.

Results: The study shows that although a literal reading of Article 2 of Law No. 11,079/2004 links sponsored concessions to monetary consideration, legislative developments and the introduction of capital contributions reveal a more flexible regulatory environment. The doctrinal distinction between monetary consideration and capital contribution is well established, but does not prevent the latter from being used as the sole public-sector financial mechanism, provided that requirements such as proportionality, express authorization, and allocation to reversible assets are satisfied.

Conclusions: Structuring PPPs exclusively through capital contributions is legally viable and economically reasonable in specific cases, with no explicit statutory prohibition. A rigid interpretative stance contradicts the inherent plasticity of PPP contracts and may hinder efficient projects. Adoption of this model should nonetheless rely on strong evidence of cost-effectiveness and compliance with all legal safeguards.