Decree No. 9,048, long awaited by companies operating in the sector, was published at the beginning of May, bringing significant changes to the previous regulation governing the operation of organized ports and port facilities.

Certainly, the most eagerly awaited change concerned the permitted operating term. The change made, although it has allowed a scenario of greater legal certainty, left doubts as to the terms applicable to contracts entered into before Law 8,630/1993 was enacted.

With the enactment of the new regulation, concession and lease contracts will have a fixed term of up to thirty-five years and may be extended successively up to a maximum of seventy years (considering the original term and respective extensions). This extension is at the granting authority’s discretion, but must be based on a demonstration of the advantages of extending the term compared to holding a new tender, with the period defined according to the time needed to amortize investments and adequately remunerate the concessionaire.

In addition, the requirements for extension include maintaining the initial qualification, eligibility and compliance conditions, being up to date with obligations to the port administration and ANTAQ, and compatibility with the guidelines and planning for the use and occupation of the area, as established in the port’s development and zoning plan.

Interest in an extension must be expressed at least sixty days before the end of the initial term. However, early extension is allowed for contracts entered into under Law 8,630/1993, provided that the general requirements above are met and there is a commitment to make new and immediate investments, not amortizable during the original term of the contract, in accordance with an investment plan approved by the granting authority.

Some specific guidelines were also set out for the general concession plan for the port sector, which will be for guidance purposes, aimed at supporting decisions on concessions, and will also contain information on Brazilian ports and port facilities and guidance on the requirements and procedures to be adopted for new concessions, according to the characteristics required for each modality.

Preliminary feasibility studies will now take into account the rational use of waterway and land access infrastructure, as well as the characteristics of each project. Simplified studies, which were already permitted, are now also allowed where the operating contract is of lower value and term, namely those not exceeding one hundred times the amount in article 23, I, “c”, of Law 8,666/1993 or with a term of no more than ten years.

Regarding tenders for the operation of these facilities, some provisions dealing with bid evaluation criteria were revoked, supplementing the changes that had already begun in 2015. Currently, the following criteria may be used, alone or in combination: highest handling capacity, lowest tariff, shortest cargo handling time, lowest consideration from the granting authority, best technical proposal and highest concession fee.

Some other aspects changed by the new regulation are as follows:

• The granting authority will now be exercised by the Ministry of Transportation, Ports and Civil Aviation.
• Approval of the transfer of ownership of concession, lease or authorization contracts will be the responsibility of the granting authority, while approval of changes in corporate control will be exercised by ANTAQ.
• A minimum period of one hundred days was set for submitting bids in the tender, except where an EVTA (technical, economic and environmental feasibility study) is required, in which case the minimum period will be forty-five days.
• A public hearing prior to the tender becomes mandatory for contracts exceeding one hundred times the limit in article 23, I, “c”, of Law 8,666/1993.
• It will be possible to expand the area already being operated, provided that efficiency gains for port operations are demonstrated, or that it is technically, operationally or economically unfeasible to hold a tender for a new port lease in that space.
• It will also be possible to swap areas within the same port, provided that operational gains for port activity or a supervening impediment to the use of that space are demonstrated, and the measure is aimed at restoring the contract’s economic and financial balance.
• Port operations must begin within five years of the contract being signed, rather than three years as previously provided. This period may also be extended at the granting authority’s discretion.
• New investments not originally provided for in the contract will be allowed, provided that ANTAQ is notified in advance, in the case of authorized port facilities, and that the granting authority approves them, in the case of concessions and leases.
• In the case of port leases, investments outside the leased area, in the common infrastructure of the organized port, will be permitted, provided the port administration consents and the granting authority authorizes them.

The new regulation, although not yet tested in practice, brings positive aspects, especially in creating a scenario of greater legal stability for investment, which will possibly allow the sector to expand, thereby improving national economic growth.