By Eduardo Amaral Gurgel Kiss
In the brink of the expected port bids in Brazil, ANTAQ (the National Agency for Waterway Transportation) has issued new rules for lease projects related to public ports.
With respect to private ports, ANTAQ has submitted a draft resolution to the public appraisal; however, the rules have not yet been changed.
The new rules for public ports were set forth by Resolution 3220, of January 8, 2014.
All new lease projects must be subject to a Technical, Economic and Environmental Analysis, referred to as EVTEA.
The following are among the most relevant items an EVTEA must contain: (a) evidence of the project's feasibility based on an economic-financial analysis considering the projected income and expenses related to the services to be rendered; (b) the amount of the rent and, when applicable, the maximum tariff to be charged; (c) technical analysis of the project, including its infra and superstructure, operational flows and its linkage to other means of transportation; (d) environmental analysis.
All projects must contain at least three scenarios: a "basic" scenario, which is the most likely to happen, an "optimistic" scenario and a "pessimistic" or "conservative" one. One of the intents is to have reasonable assurance that the project will be feasible even in the event of certain stresses.
Any interested party may request authorization to prepare and submit a project to ANTAQ. If the project is approved and utilized by ANTAQ on a public bid, the interested party will be entitled to the reimbursement of incurred expenses.
The maximum term of the leases will be 25 years and the term must be enough to amortize the planned investments. Any additional term will be subject to an agreement with the authorities on additional investments and will be subject to their discretion.
All projects submitted to ANTAQ must follow the following principles: (i) utilization of the existing infrastructure; (ii) improvement of the port services; (iii) respect to the clients' rights and the public interest; (iv) reduction of the port costs for the clients; (v) incentive of the competition; and (vi) protection of the environment.
The rules are intended to modernize the Brazilian public ports which are considered an important bottleneck for the country's development.
1 Partner at Demarest Advogados
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