The Brazilian Waterway Transportation Agency issues a new resolution on the concession and leasing of ports

The Brazilian Waterway Transportation Agency (“ANTAQ”) issued the Resolution No. 94, of 20 February 2023 giving more details on the procedure for leasing and concession of ports and also reinforcing the role of the Permanent Commission of Biddings of Concessions and Leasing of Ports (“CPLA”).

The new statute describes the procedure for assessment of the concession and leasing of ports, dividing it in two main parts: one conducted before a public hearing and other undertaken after said hearing. To prioritize the interaction with other authorities, a third part was also created to comply with eventual opinions from the Brazilian Federal Court of Accounts.

During the phase prior to the public hearing, the feasibility studies are submitted to the Special Counsel of Concessions, which will conduct the procedure by assisting the ANTAQ’s Director responsible for the case and by gathering opinions from the ANTAQ’s superintendencies, such as the Superintendence of Regulation; the Superintendence of Assignments; the Superintendence of Control and Coordination; the Superintendence of Performance, Development and Sustainability, each one with specific roles assigned by the resolution.

After the public hearing takes place, the suggestions submitted by the public will be assessed by the CPLA and a repot will be sent to the Body of Directors. The CPLA will also submit to them a draft of the tender protocol and the contract, reflecting the suggestions given in the public hearing, the resolutions of the Directors, as well as the opinions of the Brazilian Federal Court of Accounts and the Federal Attorneys’ Office.

After this procedure is completed, the Body of Directors will issue a final decision regarding the draft of the tender protocol and the contract.

A resolução também deixa claro que a celebração de um contrato de concessão ou de arrendamento será precedida de consulta à administração portuária, à autoridade aduaneira local e ao poder público municipal. Além disso, todos os critérios de análise das propostas de licitação serão estabelecidos no edital e servirão de base para o julgamento pela CPLA.

The resolution also states that the port authority, customs authority and the city’s authority shall be consulted prior to the execution of the contract. In addition, all criteria for the assessment of biddings will be provided in the tender protocol, binding the CPLA’s decision.

Our team is available for additional clarifications, as well as to assist in matters related to concession and leasing of ports.

Gustavo Flausino Coelho –

Thales Castanheira –

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