Time running out in row over auction to run Santos Tecon10 terminal

Antaq, Brazil’s national waterway transportation authority, is continuing to press for a two-stage bidding process for the Tecon10 container terminal project in Santos, despite government opposition.

The Loadstar reported in mid-May how the Brazilian government’s chief of staff office was keen to remove Antaq’s bidding restrictions, which barred existing terminal operators in the port – APM Terminals, MSC, CMA CGM and DP World – from entering the first round of bids, due to anti-competition concerns.

However, should no suitable offers be received, a second round of bids would be held that would allow existing operators to participate.

In a later development, Brazil’s Federal Court of Accounts (TCU) ruled that shipping lines should also be barred from the first round, on the basis that ‘vertically integrating’ carrier and terminal operations would be similarly anti-competitive.

However, Brazil’s Investment Partners Programme (IPP), which runs the country’s public-private investment projects, drew up a technical note which, firstly, argued that the TCU had failed to provide adequate reasons for excluding shipping lines, and secondly, recommended that existing terminal operators be allowed to bid in the first round.

In a new filing to the government, Antaq claimed the government used the IPP paper to order it to lift its auction restrictions, but that appears to have been rejected the request on the basis that it would compromise the agency’s legal autonomy “to set restrictions, limits and conditions in tender documents to prevent market concentration and anti-competitive practices”.

According to Brazilian newspaper Valorthe agency’s filing to Brazil’s Ministry of Ports and Airports, said: “The issue would therefore touch on Antaq’s regulatory autonomy directly, and proposals that weaken competition oversight should be rejected.”

However, Valor also reported that Antaq director general Frederico Dias, who is also the appointed special rapporteur to the Tecon10 auction, had said that “if the government lays out clear public policy grounds without overstepping Antaq’s legal authority, the agency should take that guidance into account”.

The new Antaq filing is now being studied by the ministry, and Antaq will only move forward with auction after its response.

The government’s current schedule is to open the bidding process by the end of the year, which means the issue will need to be resolved and the tender documents published by September.

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