Understand what can change with the new concessions and PPPs framework

The project that creates a new regulatory framework for concessions and PPPs (Public-Private Partnerships), stalled for a year in the Federal Senate, foresees a broad reformulation of the current rules for infrastructure contracts in Brazil. The text changes Law 11,079, on PPPs, which is 22 years old, and Law 8,987, on Concessions, which is over 30 years old.

The text, reported in the Chamber by deputy Arnaldo Jardim, brings together 20 points considered strategic by the private sector and the government to modernize concession contracts and reduce legal uncertainties in long-term projects.

Among the main changes planned is the definition of deadlines for tariff adjustments. The intention is to prevent contractually foreseen adjustments from being blocked by political decisions, especially in election years.

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In PPPs, the proposal provides for authorization to interrupt services in cases of default by the public authorities, as long as there are rules previously established in the contract.

The project also changes rules for expiry, re-bidding and transfer of concessions, topics that have been generating legal disputes and questions in the STF (Supreme Federal Court).

Among the most sensitive changes is the prohibition on the use of judicial recovery by concessionaires in financial difficulties. The text also creates rules for the temporary provision of public services while new definitive contracts are structured.

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The project also intends to regulate the use of constitutional funds as a guarantee for PPPs and expand the limits of real revenue that states and municipalities can commit to partnership contracts. Today, the PPP Law establishes a ceiling of 5% of this revenue for these projects. The proposal envisages increasing this percentage, although the new limit has not yet been defined.

The text also expands alternative conflict resolution mechanisms, regulates tripartite agreements - a model that allows financiers to assume concessions in the event of operators' financial difficulties - and creates specific rules for emergency contract extensions.

The regulation of risk sharing in infrastructure contracts is also planned. This point aims to advance regulation after the increase in extreme weather events and the difficulties in taking out insurance.

The project also creates the possibility of multimodal or integrated concessions, allowing different assets to be tendered together. The proposal opens up space, for example, for projects involving railways and ports in the same contract or concessions associated with tourist developments.

Another point considered relevant by the sector is the regulation of the so-called "precautionary rebalancing". The model has already been used by some granting authorities and provides for the partial anticipation of tariff adjustments to concessionaires while more complex technical discussions on economic-financial rebalancing are ongoing.

The text also changes rules on ancillary revenue. Currently, part of the gains obtained from these revenues need to be reversed to guarantee reasonable rates - which balance the lowest value without compromising the adequate investment volume. The proposal seeks to allow these resources to be allocated to concessionaires as a way of encouraging new investments and economic exploration models.

The proposal also creates mandatory deadlines for administrative decisions related to contracts. While reporting on the project, deputy Arnaldo Jardim explained that the intention of this device is to avoid excessive delays in analyzing requests for economic-financial rebalancing and other regulatory processes that today can take years to be completed.

Another important axis of the project is the expansion of selection criteria in concession and PPP tenders.

The text aims to consolidate new models already used in some projects, such as disputes over shorter asset management terms.

The proposal also creates rules for adhesion contracts, allowing states and municipalities to adhere to notices already structured by other public entities, such as in public lighting tenders.

Source: CNN