The understanding of the port’s dimension and importance in the Brazilian economy spans generations, but it never left the field of ideas. Under government tutelage since birth, the port administration has never done well. And even though the strategic importance of the control of terminals by the State enters the discussion, the lack of capacity to manage, invest and administer spaces with only public resources is notorious. According to the federal government, the sector would need to receive, by 2035, R$ 60 billion in investments to expand, improve and update services, a value impossible to obtain with the annual average of R$ 2.6 billion transferred by the Union for this purpose in last decade.
At this crossroads, the administration of President Jair Bolsonaro, especially the then Minister of Infrastructure, Tarcísio Freitas, took an important step and simplified the concession process in the sector, paving the way for the first privatization of a port administrator on Brazilian soil. The result marked the beginning of a new era, but also opened space for new tensions and uncertainties about how this business model will work.
To understand what has changed in the port structure, it is necessary to look back. Until 2013, terminal administration was managed by Law nº 8.630/1993, also known as the Port Modernization Law, which, being prior to the Public Concessions Law (nº 8.987/1995), left loose ends and violated rules for the fairness of contests. It was only in 2013 that former president Dilma Rousseff sanctioned Law No. 12,815, known as the New Ports Law. Supported by more acceptable practices, she had everything to remove the anchor that held the sector. But it didn’t. For two reasons. First, because it marked the competition with the company that offered the lowest rate. Second, by a gigantic legal knot involving a hundred leaseholders active within the ports, which won their legal right of use and exploitation before 2013. In the Michel Temer administration (who has already had his name involved in investigations in the port of Santos) the matter stopped, guaranteeing the maintenance of the status quo of the companies that already worked in the port areas.
But do you know what the Dilma, Temer and Bolsonaro governments have in common? Tarcisio Freitas. The engineer began to gain ground in 2014, when he took over the National Department of Transport Infrastructure (DNIT). Then he was secretary of the Project Coordination of the Special Secretariat of the Investment Partnership Program (PPI), until he took over the Ministry of Infrastructure. With this experience, Tarcisio simplified the way to present the port concession. Approaching the model of a shopping mall. The port administrator has the same role as a mall. Take care of the janitor, accesses and common areas. The areas of logistical exploration are the stores. Some are larger, some are smaller, with different start and end contracts, respecting contractual peculiarities. It was also decided that the concession of the administrator would occur in parallel to the areas, which was seen as a government commitment to guarantee private money also in the general infrastructure of the terminals, including access by land.
With the triad of privatization of administrators, leasing of port areas and concessions of sections of access to the terminal (waterway, railroad or highway), acceptance was good. For Norton Gagliasso, a doctor in engineering and logistics who was part of the construction of Michel Temer’s Ponte para o Futuro Program, the current model is the closest to European models in the sector. Luis Fernando Biazin Zenid, lawyer and partner in the Infrastructure area at Donelli e Abreu Sodré Advogados (DSA Advogados) agrees. “It is a wise decision, because in the hands of the private sector, short-term investments, in expansion and maintenance, occur more quickly.”
START In the first privatization of a Brazilian port manager, on April 6, the winner was the investment fund Shelf 119 Multiestratégia, owned by the manager Quadra Capital. The company offered a grant of R$106 million by Companhia Docas do Espírito Santo (Codesa), in addition to a commitment to acquire its shares for R$326 million and pay another R$186 million in 25 annual installments. With the presence of Tarcísio, the auction was fierce as it had not been seen since 2013, at the height of Dilma’s Logistics Investment Program, when airports were the darlings of the private sector. The duel was with the Beira Mar consortium, formed by Vinci Partners and Serveng. After 21 rounds and 41 throws, Shelf was the winner. With Codesa, it took the concession of the ports of Vitória and Barra do Riacho, for 35 years. The two ports will continue with the current lessees, but their contracts will be transferred to the winner of the auction, which will have to invest R$ 855 million.
“We have efficient and competitive private terminals, but they come up against the public port administration. Let’s untie these knots.” Diogo Piloni National Secretary of Ports.
The country has seven Dock Companies (BA, CE, ES, PA, RJ, RN, and SP) and other port authorities. They are responsible for the operation of the port, from the arrival of the ship, truck or train. With all these functions, the inefficiency of the public power in the management becomes more accentuated, as explained by the National Secretary of Ports and Waterway Transport, Diogo Piloni. “We have efficient and competitive private terminals, but they come up against the public port administration. Let’s untie these knots.” Zenid, from DSA Advogados, emphasizes that the public authorities still have the role of supervisor. “With private investments, litigation in port dredging, cancellation of bids, challenges for non-compliance with requirements are also avoided.”
In addition to Codesa, the São Sebastião (SP) and Itajaí (SC) terminals are on the privatization route, which together will serve as a pilot for the privatization of the Port of Santos, scheduled for this year. But there are obstacles. The sale of shares in Santos Port Authority (SPA) would require an investment of more than R$ 15 billion. In addition to having more legally problematic leases, many made under questionable processes and with powerful owners. But Tarcísio should not follow this fight closely, as he asked for his resignation as minister in order to be able to run, apparently, for the government of São Paulo in October.
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