Dissatisfied with the drafts of the lease contracts for the auction in the ports of Santos (SP) and Vila do Conde (PA), the Brazilian Association of Port Terminals (ABTP) requested yesterday, in a letter, the suspension of public notices to the Secretariat of Ports (SEP ), but later retreated.
“There are associated companies interested in participating in the bidding and the request to stop would delay the process. We decided to support the auction and then make any adjustments to the contracts”, said ABTP president, Wilen Manteli, who said he had asked the Minister of Ports, Helder Barbalho, to disregard the letter.
ABTP is the largest association in the sector. It represents 82 companies that own more than 170 private and leased terminals that accounted for about 70% of the almost 970 million tons handled in 2014 in Brazilian ports.
Some associates were originally in favor of challenging the public notices with the sector's regulatory agency, Antaq. “Rationality prevailed”, says Manteli. The deadline for contestation ended yesterday; tomorrow comes the result of the judgment of the requests. Until Tuesday, no request for suspension of the auction had been filed with the bidding committee.
The auction is scheduled for Wednesday, at BM&FBovespa, in São Paulo. Four areas are expected to be tendered, three in the port of Santos and one in Vila do Conde. These are the first areas to be leased since the Ports Law of 2013. They are part of a package of 93 areas that will be auctioned until 2016.
The main complaint of entrepreneurs is in relation to legal uncertainty. Unlike past tenders, the drafts of these contracts define as their object not the leasing of the area or facilities, but the provision of “activities”. This would configure a precarious authorization and without legal support in the port regulatory framework, says ABTP.
Associates favorable to the challenge request understand that if the drafts succeed, they can be used in future adaptations of contracts. Another criticism is that risks that he cannot manage, such as tax changes, fall on the winner of the dispute.
“The government has allocated most of the risk to the lessee. If you assume more risks, you will present a smaller grant to take the asset”, says the professor of regulatory law at FGV and partner at LL Advogados, Rafael Véras, for whom this could frustrate the government’s estimate of raising BRL 1 billion in grants in the auction.
SEP did not comment on ABTP's letter. A government source says that the drafts were approved after a year and a half of analysis at the TCU and that there were 45 days for manifestation since the publication of the edicts.
Source: Valor Econômico
By: Fernanda Pires
