Brazil weighs R$150bn in upgrades to existing concessions
Rafael Benini
Divulgação/B3
Beyond auctions for new concessions, Brazilian governments are discussing roughly R$150 billion in investments that could be added to existing contracts through amendments, with operators compensated through direct payments or longer concession terms.
São Paulo state is negotiating R$40 billion in new projects with highway operators. The proposals include a third carriageway on the Imigrantes highway, operated by Ecorodovias, as well as additional works on the Autoban and SPVias networks, run by Motiva, formerly known as CCR.
Another R$30 billion is under discussion with metro concessionaires. Potential investments include new stations on Line 5-Lilac, also operated by Motiva, and Line 6-Orange, operated by Acciona.
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At the federal level, the Transport Ministry and logistics company VLI are close to completing a R$24 billion agreement to renew the Centro-Atlântica Railway concession for another 30 years in exchange for new investments.
The government is also rushing to conclude negotiations with Vale this year over the mining company’s railway concessions, a process that could generate an additional R$7 billion.
The ministry is holding separate talks with six highway concessionaires on contract restructurings that could unlock R$50 billion. The negotiations involve both new projects and the settlement of longstanding disputes that have prevented previously agreed investments from moving forward.
One of the main assets being renegotiated is the Régis Bittencourt highway. A competitive process scheduled for Thursday (23) will mark one of the final stages of the restructuring. The agreement is expected to enable R$7 billion in improvements to the road.
Faster investment
For governments, contract amendments offer a way to bring investments forward rather than waiting for concessions to expire, holding a new auction and only then contracting the projects.
“In the past, we would set out all the works in the contract and live with it until the end. We saw that this does not work. The clearest example is the Dutra highway. We spent 25 years under a contract with two lanes. Under the new contract, [the construction requirement] went straight to four lanes because the service level had already exceeded capacity,” said Rafael Benini, São Paulo state’s secretary for investment partnerships.
Still, contract amendments have raised concerns among experts over transparency and the risk that incumbent operators could remain in control of assets for too long.
Ecorodovias’ concession for the Imigrantes highway, for example, was originally due to expire in 2018. It has since been extended to 2034 through negotiations to restore the contract’s economic and financial balance. The term could now be extended again if the proposed third carriageway, estimated to cost about R$8 billion, is added to the agreement.
To avoid an excessively long extension, São Paulo plans to make a direct payment to the concessionaire, Benini said.
“I don’t want to give Imigrantes another 30 years. I don’t want to extend the term only to have to include something else in the middle [of the contract again], so I will have to put in money.”
Benini said the amount has yet to be calculated.
Public funding
Other amendments under discussion by the state are also expected to require public funding. That applies to all public-private partnerships, or PPPs, because Brazilian law limits those agreements to 35 years.
Concessions that have been renegotiated in recent years and have already had their terms extended are also likely to receive capital contributions to prevent further lengthy extensions, Benini said.
São Paulo has created another mechanism for amendments involving major construction projects: a competitive process to select the contractor.
The procedure is expected to become mandatory for projects worth more than R$1.5 billion and will soon be regulated through an ordinance issued by the São Paulo State Transport Agency, or Artesp.
By requiring construction companies to compete, the government aims to lower project costs and use the winning bid as the basis for negotiating the amendment with the concessionaire. The process is intended both to reduce the amount paid by the state and to encourage innovative engineering solutions, Benini said.
“It is a new idea that makes sense if we are to secure the best possible engineering and price.”
The model was tested in the amendment to the concession for Metro Line 4-Yellow, signed with Motiva, and is now being applied to Line 5-Lilac, where the competitive process is nearing completion.
Competitive safeguards
Letícia Queiroz, a partner at law firm Queiroz Maluf Advogados, said the new arrangements designed to limit the “moral hazard” of excessively benefiting a particular business group reflect the infrastructure sector’s growing maturity in recent years.
“There is no way to avoid revisions in long-term concessions. These contracts also serve the public interest, so making changes can be worthwhile. But the way they are made varies greatly. Has the amendment been properly analyzed? Does it offer value for money? Increasingly, impact assessments and the examination of alternatives are being taken seriously,” she said.
At the federal level, Queiroz noted that oversight includes prior review by the Federal Audit Court (TCU).
The restructuring of troubled concessions has also incorporated a competitive process under which renegotiated contracts are offered to the market, reducing the risk that the talks directly favor the incumbent company.
“Moral hazard has to be on the table. What signal am I sending when I do not hold an auction and instead close the market? This concern is being discussed, and that is important,” Queiroz said.
Legal gaps
One factor complicating the debate is that Brazilian law does not set clear limits on amendments to concession contracts, unlike the rules governing other, shorter-term public agreements, said Felipe Fonte, a professor at FGV Direito Rio and a Rio de Janeiro state attorney.
“It is a difficult balance to assess because these are long-term contracts that will always require adjustments.”
For Fonte, transparency is the central issue.
“The most important thing is for the data relating to the projects’ economic and technical aspects to be made public, for the discussion not to take place through a confidential administrative proceeding and for it to be monitored by an independent oversight body. The numbers need to be scrutinized.”
Augusto Neves Dal Pozzo, of law firm Dal Pozzo Advogados, also said amendments are inherent in this type of contract, but the process used to approve them is what matters most.
“An amendment cannot be treated as an anomaly. The problem is not the amendment itself, but an amendment without a method, without transparency, without a value-for-money assessment and without performance targets. We cannot issue a blank check,” he said.
Dal Pozzo added that Brazil still needs to make substantial improvements to the way such amendments are negotiated, particularly in some states and municipalities with less developed regulatory institutions.
In a statement, Ecorodovias said “the project for the third carriageway of the Imigrantes highway is in the final stages of preparation and will soon be submitted to the state government, which will be responsible for deciding whether to include the investment in the Ecovias Imigrantes contract.”
Motiva reiterated previous statements on the matter. Motiva CEO Miguel Setas recently said amendments involving metro lines 4 and 5, SPVias and Autoban were the company’s main ongoing negotiations.
Acciona declined to comment.
