A desregulamentação do verificador independente na supervisão contratual de concessões públicas: análise da ‘neutralidade’ fiscalizatória no serviço de saneamento básico em Governador Valadares/MG à luz da teoria da captura

Abstract

In order to comply with the requirements established by the New Regulatory Framework for Basic Sanitation, Law No. 14,026/2020, while also addressing high operational costs, Brazilian municipalities have increasingly been encouraged to decentralize their services through concession arrangements. This trend, however, demands enhanced mechanisms for the oversight and execution of such contracts. In this context, among the emerging developments in Administrative Law, the figure of the Independent Verifier has proliferated, notwithstanding the concurrent role played by regulatory agencies and the granting authority in shaping the supervisory framework. To address the proposed topic, this study employs an exploratory, bibliographical, and interdisciplinary research methodology, drawing upon primary and secondary sources, as well as qualitative data and a case study of the sanitation concession in Governador Valadares, Minas Gerais. The central research problem investigates whether the normative deregulation surrounding the intervention of the Independent Verifier in the oversight of concessioned public services may be characterized as a form of regulatory capture, thereby compromising the technical independence and decision-making authority of the regulatory agency. The hypothesis advanced is that regulatory capture undermines both the principle of impersonality and efficient regulation, and that regulatory absence constitutes one of its manifestations, creating risks arising from the lack of regulation governing the intervention of the Independent Verifier in concession contracts, particularly within the basic sanitation sector. Accordingly, the sharing of guardianship over the regulated entity’s interests between the regulatory agency and the verifier, without adequate safeguards—especially when the verifier is financed by the concessionaire—creates a favorable environment for compromising the agency’s technical functions, which become increasingly susceptible to interference from the regulated sector. The study concludes that the absence of specific legislation gives rise to a form of “normative elision” and a “regulatory vacuum” conducive to practices of regulatory capture, making the enactment of legal frameworks that safeguard the functional independence of the Independent Verifier indispensable in order to prevent regulatory anomie and loss of regulatory control.