Mauro Bardawil Penteado, Pedro Henrique Jardim, André Camargo Galvão, Rafaela Tavares Ramos and Caio Colognesi.
Decree No. 10,672/21, published in the Official Gazette (DOU) on April 13, regulated Law No. 12,815/13 (Ports Law), creating a rite that allows the exemption from bidding for port lease, in addition to establishing procedures and conditions for the temporary use of areas and facilities located within the polygonal of the organized port. The following are the main changes introduced by the decree:
Exemption from bidding for the absence of multiple interested parties. The decree allows the exemption from bidding when it is proven the existence of a single interested in the exploration of port facility located within the organized port. The port authority shall make a public call within 30 days to identify the existence of other interested parties in the exploration of the area and the port facility, the extract of which will be published in the DOU, containing minimum information stipulated by the decree. Any potential interested party must formally express its interest through a document filed with the competent port authority.
The expression of interest presupposes the commitment of the interested party (who must be a legal entity) to (a) conclude the lease when he is the sole participant in the public call or (b) submit a valid tender in a bidding event, if there is more than one interested party.
The commitment will be signed by proving the provision of a proposal guarantee, as a way to avoid the expression of interest for delaying purposes.
Exemption from bidding for temporary use contracts. The decree allows the port administration to enter into a temporary contract for the use of port areas and facilities located within the polygon of the port organized with an interested party in the movement of cargo with unconsolidated market, that is, cargoes not regularly moved in the port in the last five years. Thus, the bidding process is exempted.
The temporary use of port areas and facilities will be structured through a Temporary Contract for the Use of Port Areas and Facilities, which will be signed between the interested party and the competent port administration. This contract must comply with the following specifications, among others: an non-extendable period of up to 48 months and use of the object area compatible with the development and zoning plan approved by the granting authority.
If there is more than one interested and no physical availability to allocate all interested parties simultaneously, the port administration will make simplified selection process to choose the project that best meets the public interest and the organized port.
Change in the rules of the port bidding procedure. The decree amends the minimum deadline for the submission of proposals, which was previously set to 100 days from the date of publication of the tender notice. Now, this period becomes the one stipulated by the notice, observing the legal minimum period. The decree also granted the National Waterway Transport Agency (Antaq) the competence to, within 120 days of the date of publication of the decree, fix the limit value of contracts in which it is not necessary to hold a public hearing for the bidding event. Thus, it will not be necessary to observe the fixed amount tied to Law No. 8,666/93 (Bidding Law), stipulated at R$ 330 million.
Simplified feasibility study. In addition to the hypotheses of exemption from bidding, Decree No. 8,033/13 established that previous studies of technical, economic and environmental feasibility of the purpose of the lease or concession could be carried out in a simplified manner, if they met the criteria set out in the regulation, one of which was the limit value of R$ 330 million. With the publication of Decree No. 10,672/21, this value limit criteria was withdrawn and maintained only the contractual term of up to 10 years.
Changes in the initial deadline for port concessions. The decree removed the limitation of time limit for the first contractual period of a port concession, previously determined in 35 years, but maintained the maximum limit of 70 years.
