Optimization of highway concessions and contractual mutability: potentialities and limits in light of administrative consensuality

Abstract

This article analyzes the optimization of highway concessions as a contemporary expression of contractual mutability within long-term administrative contracts. It starts from the premise that highway concessions, due to their technical complexity, capital intensity, and exposure to economic, regulatory, and financial variables, require mechanisms capable of allowing contractual adaptation without disrupting the concession relationship. The study examines the institutional development of such optimizations through the role of the Federal Court of Accounts, Normative Instruction No. 91/2022, Ordinance No. 848/2023 of the Ministry of Transport, and the Highway Concession Optimization Program. It argues that optimization, in its strict sense, although formally implemented through an amendment to the concession agreement, has broader substantive content and may be characterized as an administrative agreement of a consensual-regulatory nature. The article distinguishes optimizations from ordinary contractual amendments and rebidding procedures, emphasizing the potential of the mechanism to preserve service continuity, resume investments, and restore the economic-financial balance of the contract. Finally, it examines its legal limits, particularly the preservation of the tendered object, competitive equality, technical justification, economic-financial balance, and institutional oversight.