by Davi Madalon Fraga*

Right at the start of 2023, the plenary of the TCU (Federal Court of Accounts) set out important precepts on compensation for non-amortized or non-depreciated assets and on re-tendering in cases of early termination of concession contracts. Through Judgment 8/2023, with Justice Aroldo Cedraz as reporting justice and issued in Case 028.391/2020-9, the TCU made recommendations to ANAC (National Civil Aviation Agency) regarding the re-tendering of São Gonçalo do Amarante Airport (RN), whose principles and grounds can, however, be applied to the concession contract regime in general.

Regarding the amount of compensation to be paid to the original concessionaire, the Court of Accounts indicated that the assessment study must be carried out accurately, clearly and sufficiently, based on concrete (not abstract) data. This study must be submitted to an independent audit firm and then to public consultation. Only then should the amounts be approved by ANAC’s collegiate board and, finally, submitted to the TCU itself for review. Payment of compensation to the private party may take place before approval by the TCU.

In addition, in his opinion, the reporting justice considered it entirely possible (and advisable) to conduct the compensation calculation process together with the re-tendering procedure, since any delay in quantifying the amount to be compensated would slow down the replacement of the private partner, compromising the continuity of the public service. However, the final amount of compensation must be determined and disclosed before bids are submitted in the re-tender, so that bidders know the compensation amount approved by the regulatory agency along with the publication of the tender notice, as a means of ensuring equal treatment in the process. This measure would allow new parties interested in the business, when entering the tender, to weigh the risks involved and submit their bids on an equal footing, bringing greater security and predictability to the tender and the future contract.

The full opinion of the reporting justice and the judgment can be found at this link: https://www.agenciainfra.com/blog/relicitacao-em-contratos-de-concessao-duas-importantes-orientacoes-do-tcu/

*Davi Madalon Fraga holds a specialization in State Law from UERJ (Rio de Janeiro State University) and is a senior associate at Giamundo Neto Advogados.

Article originally published by Portal da Infra (in Portuguese), on 03.01.2023.