Brazil: The Brazilian Investment Partnerships Program

Last Updated: 20 May 2016
Article by Walter Stuber

One of the first measures adopted by the Vice-President Michel Temer, who is now the Head of the Brazilian Executive Branch as a result of the process of impeachment of Dilma Rousseff, was to make it clear to the market that the new Brazilian Government will welcome the participation of the private sector in the public infrastructure projects.

The matter is regulated by Provisional Measure No. 727, of May 12, 2016 ("MP 727/2016"), that creates the Investment Partnerships Program (Programa de Parcerias de Investimentos – PPI) for the expansion and strengthening of the interaction between the State and the private sector through the conclusion of partnership agreements for the implementation of public infrastructure projects and other privatization measures.

I. Introduction

MP 727/2016 contemplates  the main features of the PPI and also contains the following relevant topics: (a) creation of a Council linked to the Presidency of the Republic (Conselho do Programa de Parcerias de Investimentos da Presidência da República – the Council) and of an Executive Secretariat (Secretaria Executiva do Programa de Parceiras de Investimentos – the Secretary); (b) institution of the systematic structuring of projects; (c) creation of a Support Fund Structuring of Partnerships (Fundo de Apoio à Estruturação de Parcerias – the Fund); and (d) adoption of measures for the expeditious release of the projects.

II. Main Features of the PPI

The PPI is formed by: (i) the public infrastructure projects implemented through partnership contracts concluded by the direct and indirect Public Administration of the Union; (ii) the public infrastructure projects, by delegation or with the promotion of the Union, to be implemented through partnership agreements concluded by the direct or indirect Public Administration of the States, the Federal District or the Municipalities; and (iii) the remaining measures of the National Privatization Program (Programa Nacional de Desestatização) referred to in Law No. 9,491, of September 9, 1997 (Law 9,491/1997).

Articles 2 and 4 of Law 9,491/1997 contemplate the following privatization measures: (a) divestment of equity interest, including stock control, preferably by spraying of shares; (b) opening of capital; (c) capital increase, with total or partial waiver or cession of subscription rights; (d) sale, rental, leasing, lending or transfer of goods and facilities; (e) dissolution of corporations or partial deactivation of their ventures, with the consequent sale of their assets; (f) concession, permission or authorization of public services; and (g) leasing (aforamento)[1], redemption of venue, exchange, transfer, granting of right in rem of resolvable use and alienation by sale of immovable property of any domain of the Union of any: (i) companies, including financial institutions, directly or indirectly controlled by the Union, imposed by law or act of the Executive Branch; (ii) companies created by the private sector and that for any reason whatsoever passed to the direct or indirect control of the Union; (iii) public services object of concession, permission or authorization; (iv) State public financial institutions  whose shares have been expropriated in the form of Decree-Law No. 2,231, of February 25, 1987; and (v) movable and immovable property of the Union.

For the purpose of MP 727/2016, partnership agreements are considered the common concession, the sponsored concession, the administrative concession, the concession governed by sectorial legislation, the public service permit, the lease of public good, the granting of right in rem and other public-private business that adopt similar legal structure in function of its strategic character and its complexity, specificity, volume of investments, long-term and involved risks or uncertainties.

The PPI's objectives are the following: (i) to expand investment opportunities and employment and stimulate technological and industrial development in harmony with the goals of the social and economic development of the country; (ii) to ensure the expansion of public infrastructure quality, with appropriate rates and prices; (iii) to promote wide and fair competition in the signing of partnerships and the provision of services; (iv) to ensure stability and legal certainty, with the minimum intervention in the businesses and investments; and (v) to strengthen the regulatory role of the State and the autonomy of the State regulatory bodies.

In implementing the PPI the following principles must be observed: (i) stability of the public infrastructure policies; (ii) legality, quality, efficiency and transparency of the State performance; and (iii) maximum legal certainty for the involved public agents, State entities and individuals.

The PPI will be regulated by means of decrees which, under the terms and limits of the sectorial laws and applicable general legislation, shall define: (i) the federal long-term policies for investment through partnerships in infrastructure and privatization federal public projects; (ii) the federal public qualified infrastructure projects to be implemented by partnership and the strategic guidelines for structuring, bidding and contracting; (iii) the federal policies to foster partnerships in public infrastructure projects of the States, the Federal District or the Municipalities; (iv) other privatization measures to be implemented; and (v) the agenda of actions.

The projects of the PPI will be treated as a national priority by all public agents of execution and control of the Union, the States, the Federal District and the Municipalities.

The bodies, entities and authorities of Public Administration of the Union with competences relating to the projects of the PPI shall have their own programs aimed at adopting, on the administrative regulation, regardless of any legal requirement, advanced practices recommended by the best national and international experiences, including:

(i) with due observance to the competences of specific legislation and with prior public consultation, to issue plans, regulations and acts that draw up and become stable the policies laid down by the Executive Branch for each regulated sector, making secure their implementation within the framework of the administrative regulation;

(ii) regulatory impact analysis whenever there is an issue or amendment of regulations, regulatory sector plans and other sectorial regulatory acts, aiming to guide decision-making and ensure the efficiency, effectiveness, coherence and quality of regulatory policy, with integral respect to the involved standards and rights;

(iii) prior hearing of the competent authorities regarding the consistency and fiscal, economic and competitive impacts of the regulatory measures under analysis;

(iv) prior public consultation when editing or amending regulations and sectorial regulatory plans;

(v) constant monitoring and annual assessment regarding the implementation and the results of the regulatory measures foreseen in the policies, plans and regulations;

(vi) elimination of bureaucratic barriers to the free organization of the enterprise activity;

(vii) coordination with the Administrative Council for Economic Defense (Conselho Administrativo de Defesa Econômica - CADE), to increase the efficiency and effectiveness of the measures to encourage competition and the prevention and suppression of violations to the economic order; and

(viii) coordination with bodies and control authorities, to increase the transparency of the administrative actions and the efficiency for receiving and considering the contributions and recommendations.

III. The Council

The Council[2] is an immediate advisory body to the Chief of the Executive Branch (the President of the Republic) in the establishment and monitoring of the PPI and will give prior opinion to any resolution of the President with regard to the proposals of the Sectorial Ministries and Councils[3] on the matters provided for in MP 727/2016, as well as it will also monitor the implementation of the PPI.

The members of the Council are the President of the Republic (who is the Chair of the Council), the Executive Secretary (who will act in the same capacity in the Council), the Chief of Staff, the Ministers of Finance, Planning, Budget and Management, Transport, Ports and Civil Aviation, and Environment and the President of the Brazilian Development Bank (Banco Nacional de Desenvolvimento Econômico e Social – BNDES), all with voting rights.

In the case of privatization of financial institutions the President of the Central Bank of Brazil (Banco Central do Brasil – Bacen) will participate in the meetings of the Council, with voting rights.

The Sectorial Ministers responsible for proposals or matters under review and, if applicable, the maximum leaders of the competent regulatory authorities and the President of the Federal Savings Bank (Caixa Econômica Federal - CEF) will be invited to participate in meetings of the Council, without voting rights.

The Council will be able to formulate proposals and well-founded representations to the Chiefs of the Executive Branch of the States, the Federal District and the Municipalities, as well as recommendations to bodies, entities and authorities of the Public Administration of the Union, in order to enhance the regulation's policies and actions.

IV. The Secretariat

The Secretariat of the PPI will have as a basic structure the Office and up to three Secretaries. It is a body subordinate to the Presidency of the Republic that aims to coordinate, monitor, evaluate and supervise the actions of the PPI and support sectorial actions necessary for its implementation, in accordance with the conditions and time limits set out in a Decree, and without prejudice to the legal competence of the Sectorial Ministries, bodies and industry entities.

MP 727/2016 created the position of special nature of Executive Secretary of the  Secretariat of the PPI and also linked to the Executive Secretariat the Planning and Logistics Company (Empresa de Planejamento e Logística - EPL), as support to the Council.

In the exercise of his/her supervisory and support functions, the Executive Secretary of the PPI will closely monitor and will give subsidies to the activities of the Sectorial Ministries, bodies and industry entities.

The following actions are attributions of the Executive Secretary of the PPI: (i) to give extensive and up-to-date disclosure of the projects of the PPI, with data allowing the public and permanent monitoring of each project, until its closure; (ii) to sign adjustment agreements with CADE to receive technical contributions in order to adopt national and international best practices to promote the full and fair competition in the entering of partnerships and the provision of services; and (iii) to sign adjustment agreements or conventions with bodies or entities of the Public Administration of the Union, the States, the Federal District or the Municipalities to the coordinate action or for the exercise of decentralized functions.

The powers, composition and functioning of the Secretariat will be established in an Act of the Executive Branch.

V. Structuring Projects

As regards the systematics of structuring of projects, MP 727/2016 refers to the "basic structuring" (estruturação básica) and to the "integrated structuring" (estruturação integrada) that are two modalities of Procedure of Expression of Interest (Procedimento de Manifestação de Interesse - PMI). The PMI allows the private sector to offer to the Public Administration studies, which can be used for structuring projects.

The basic structuring is the possibility extended to interested parties to present to the Public Administration their projects, surveys, investigations or studies related to the development of the preliminary procedure concerning the modeling of the basic characteristics of the project, regardless of any authorization and without the possibility of any reimbursement.

Integrated structuring is the articulated and complete set of activities and technical services, including studies, engineering, architecture and other projects, surveys, investigations, advisory, including public relations, consulting and technical, economic and financial and legal advice, to enable the release, bidding and awarding of the project, according to best practices and with transparency. These services can also include the review, improvement or supplementation of subsidies obtained in side or previous jobs.

For the integrated structuring the Public Administration may: (i) obtain structuring integrated studies or studies in relation to particular matters, through the Authorization of Studies Procedure (Procedimento de Autorização de Estudos - PAE)[4]; or (ii) enter into directly with the Fund a contract of integrated structure.

When provided for in the calling notice, the Public Administration may issue a single authorization for the carrying out of studies of integrated structuring or release, provided that the application of the person concerned include the resignation of the possibility of acting in the bidding of the project, or as hired by the private partner, by: (i) the applicant; (ii) the controllers, controlled companies and entities under common control of the applicant; (iii) the economic leaders, thus considered the individuals or legal entities that have hired or hire the applicant for the activities object of the authorization, as well as the controllers, controlled companies and entities under common control of the economic leaders; and (iv) the individuals and legal entities that will act as contractors of the applicant in implementing the activities object of the PAE's authorization.

The authorization for the integrated structuring may include the provision by the authorized party to the Public Administration of studies and subsidies until the conclusion of the partnership.

The calling notice may provide that, in addition to the compensation of the costs, the reimbursement to the authorized party will include a reward for risks taken and the outcome of the studies.

The bidding and awarding of public projects of the PPI are independent of legal authorization, general or specific, except if expressly otherwise required by any subsequent (i.e. any law enacted after MP 727/2016). However, sponsored concessions in which more than 70% of the remuneration for the private partner is paid by the Public Administration will depend on the specific legislative authorization[5].

VI. The Fund

BNDES is authorized to establish and participate in the Fund, which will have an initial term of 10 years, renewable for equal periods. The Fund will have private nature and separate assets from those of its administrator and unit holders, and will aim to provide remunerated structuring and release services to project partnerships within the PPI. BNDES will administer, manage and represent the Fund in and out of court and will be remunerated with part of the price received to compensate the services rendered by the Fund, in accordance with the Fund's bylaws.

The Fund will be subject to its own rights and obligations, with ability to sign in its name, contracts, agreements or any other form of adjustment that establish duties and obligations and be necessary to carry out the Fund's purposes.

The administrator and the unit holders will not respond for any obligation of the Fund and are only liable for the payment of the units that they have subscribed.

The Fund will be able to articulate with bodies and entities of the Union, States, Federal District, whose performance is linked to the functional structuring, release, bidding, contracting and financing of projects and activities, to exchange information and monitor and collaborate with one another in the works.

The resources of the Fund are the following: (i) those arising from the payment of units in Brazilian currency by public law legal entities, international organizations and individuals or private law legal entities, State owned or not; (ii) the remuneration received for its services; (iii) those received by the sale of assets and rights, or of publications, technical material, data and information; (iv) income from financial investments made by the Fund; and (v) those arising from other sources defined in its bylaws.

The Fund will not pay income to its unit holders. The unit holders will have the right to request the total or partial redemption of their respective units and the liquidation of these units will be made on the basis of the assets and liabilities of the Fund. The redemption of units in an amount greater than the amount of available financial resources not yet linked to integrated structuring already contracted is prohibited, in accordance with the Fund's bylaws.

The Fund's bylaws must provide for measures to ensure the security of information, so as to contribute to the huge competition and avoid conflicts of interests in partnerships of public projects.

For the execution of technical services for which it has been hired, the Fund may use external technical support professionals, companies or entities of high specialization. It will be up to the public agents of the Fund the general coordination of the work and the division of work with the Public Administration and with other involved bodies, entities and authorities. The technical services agreements concluded with professionals, companies or entities with high specialization shall provide that the authors of the projects and studies, hired or subcontractors, and their responsible economic agents, will be prohibited from participating directly or indirectly in the forthcoming bid for the partnership.

The hiring of technical services for the Fund will be carried out by procurement regime to be established in accordance with the applicable legislation.

VII. The Release

The bodies, entities and State authorities of the Union, the States, the Federal District and the Municipalities, including those that are autonomous and independent, in which the viability of the PPI projects will depend on their competences, have a duty to act jointly and effectively to complete, uniformly, economically and in time-schedule compatible with the national priority character of the project, all processes and administrative acts which are necessary to the structuring, release and execution of each project.

Release is to obtain any licenses, authorizations, registrations, permits, rights of use or exploitation, special regimes, and equivalent titles, of any nature, including regulatory, environmental, indigenous, urban, traffic, public assets, hydro, cultural heritage protection, customs, mining, tax, and any other issue, which may be required for the implementation and operation of the project.

The bodies, entities and public administration authorities of the Public Administration of the Union with sectorial competences related to the PPI projects will call upon all bodies, entities and authorities of the Union, the States, the Federal District or the municipalities, which have release competence, to participate in the structuring and execution of the project and achieving the objectives of the PPI.

VIII. Final Considerations

The provisions of MP 727/2016 will apply in that fits to the business private ventures that operate in the administrative authorization scheme, competing or jointly working in the State or public service sector with public projects of State entities or third parties engaged by means of partnerships.

MP 727/2016 came into force on May 12, 2016, date of its publication in the Official Gazette of the Union (Diário Oficial da União - DOU), but it must still be approved by the Brazilian Congress in order to be converted into law[6] and regulated by means of decrees.


[1] The right of tenants to the use and fruition of immovable property against the payment of rent [...] and with the right of retrieval recognized as such.

[2] The Council went on to perform the functions assigned to: (i) the manager body of public-private partnerships (órgão gestor de parcerias público-privadas federais) by Law No. 11,079, December 30, 2004, which establishes general rules for bidding and contracting of public-private partnerships in the field of Public Administration; (ii) the National Council for Integration of Transport Policies (Conselho Nacional de Integração de Políticas de Transporte) by Law No. 10,233, of June 5, 2001, which provides for the restructuring of the water and land transport and creates such other Council; and (iii) the National Council on Privatization (Conselho Nacional de Desestatização) by Law 9,491/1997.

[3] The Sectorial Councils are the National Energy Policy Council (Conselho Nacional de Política Energética) and the Secretariat of Communication and Publicity (Secretaria da Comunicação e Publicidade) pursuant to items IV and X of Paragraph 1 of article 1 of Law No. 10,683, of May 28, 2003, that rules on the organization of the Presidency of the Republic and the Ministries.

[4] This modality will obey the regime of article 21 of Law No. 8,987, of February 13, 1995 (that governs the concession and permission of public services), which states the following: "Art. 21. The studies, investigations, surveys, projects, works and expenses or investments already made, linked to the concession, which are useful for the bidding, conducted by the Government authorities or with their authorization, will be at the disposal of the concerned parties, and the winner of the bid will have to repay the corresponding expenditure, specified in the bidding notice".

[5] This requirement is made by paragraph 3 of article 10 of Law 11,079/2004.

[6] The new rules will be effective for 60 days after the date of publication in the DOU, and this term is renewable once for an equal period, in accordance with the Brazilian Federal Constitution. The transformation of the provisional measure into law will depend on the approval of the Brazilian Congress. If the Chamber of Deputies or the Federal Senate reject this provisional measure or MP 727/2016 loses its effectiveness, the congressmen must edit a legislative decree to discipline the effects that this provisional measure has generated during its term of validity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Walter Stuber
 
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