Limits on consensual changes to administrative contracts: if the parties agree, is everything possible?

Abstract

This article examines the legal limits on consensual amendments to administrative contracts under Brazilian Law nº 14.133/2021, challenging the thesis that the absence of an explicit reference in Article 125 allows unlimited changes when both parties agree. Using a hypothetical-deductive method, the study demonstrates the inconsistency of this argument. Through a systematic analysis of statutory provisions, legislative history, the legal regime governing state-owned enterprises, and core procurement principles, the article argues that the percentage limits set forth in Article 125 also apply to consensual amendments involving quantitative or qualitative changes to the contractual object. It contends that mutual agreement does not override the unavailability of the public interest nor justify the transformation of the originally bid object, which would undermine equality, competition, and procurement planning. The article nonetheless acknowledges the admissibility of consensual suppressions exceeding statutory limits and the existence of legal mechanisms to address exceptional situations in the public interest. It concludes that consensuality does not authorize unrestricted circumvention of statutory limits on contractual amendments.