Claudia Elena Bonelli, Ana Cândida Mukai and Thaísa Toledo Longo of TozziniFreire in São Paulo look at the changes taking place in the Brazilian transport sector
Nowadays, the discussion about economic growth and development is increasingly connected not only to the level of development of the transportation modals of a country, but also to its logistic integration or intermodality. Supply chain issues have become one of the major topics of the companies’ business strategies, in almost all industry sectors.
In Brazil, one of the biggest challenges to achieve a mature logistics transportation system in its intermodality is the fact that the current Brazilian legal framework on transport sets forth various Government entities and agencies which play different and complementary roles in the transport sectors. Such diffuse competencies can be illustrated with the fact that, in the Executive Branch level, there are the following entities: the Ministry of Transportation, the Brazilian Secretariat for Civil Aviation (SAC), the Special Secretariat of Ports (SEP), among other entities.
The transport sectors are also regulated and inspected, on the federal level, by three different regulatory agencies: National Land Transportation Agency (ANTT), responsible for highways, railways, passenger and cargo transport; National Waterway Transportation Agency (ANTAQ), responsible for activities related to waterway transportation services and port infrastructures; and National Civil Aviation Agency (ANAC), responsible for the airport infrastructure.
Additionally, States and Municipalities are also competent for establishing policies and regulating some types of transportation modals, such as the urban and intermunicipal passenger and cargo transportation.
For quite some time, the Federal Government has identified the deficiencies of this model and has been seeking solutions and measures able to allow this fragmentation to be overcome. Examples of such efforts are:
(i) One of the relevant actions taken by the Brazilian Government in the direction of the transport system integration was the set up of the Planning and Logistics Company (EPL - Empresa de Planejamento e Logística). Its main purpose is to assist all the other Government entities involved in the various transport sectors, in planning the process of integration of the national logistic system. EPL was also conceived as an additional agent in the implementation of strategic transport projects, such as the high-speed train connecting the cities of São Paulo and Rio de Janeiro. In this project, EPL was designated to play the role of the public partner of the private investor in the Concessionaire responsible for the operation of the passenger railway transportation services by high-speed trains.
(ii) The reformulation of the National Transport Plan;
(iii) Constant partnerships with State and Municipal Governments, both for effective projects, such as the current project for delegation to the private initiative of regional airports by means of the State Governments; and for the performance of strategic studies on local transport integration projects, such as the Ferroanel project in São Paulo State and the urban mobility study for Florianópolis, financed by the Project Structuring Fund of the National Economic and Social Development Bank – BNDES;
(iv) The Brazilian Logistics Investment Plan (PIL), a nationwide program aiming at fostering economic development by means of logistic integration.
We strongly believe that such joint efforts and programs will result, in the future, in the implementation of projects which effectively integrate the various transportation modals in Brazil, enabling intermodality and, as a consequence, a new development and growth reality.
What improvements could be made to Brazil’s public transport infrastructure?
Brazil’s most important logistic infrastructure was built by the Military regime, which means that many structures of modern transport modals are yet to be built, renovated and updated to meet the requirements of the Brazilian economy. In order to implement such measures, the Brazilian Government is already facing the challenge of defining strategies that allow efficient transport integration for the future.
In such a scenario, the current efforts of the Brazilian Government to integrate transportation modals were received with enthusiasm by the market. The efforts aim at finally bringing the country’s logistics infrastructure to the same level as modern economies, fostering the country’s economic development.
A major breakthrough was the announcement by President Dilma Rousseff of an important investment program to improve highways, railways, ports and airports, which will be enlarged and renovated within the next 5 to 25 years. The program was called Brazilian Logistics Investment Plan (PIL) and was launched in 2012 with a view on integrating the national logistics and transportation systems, while, at the same time, promoting affordable transport tariffs.
At the moment, the combined action of EPL within the planning proposed by PIL has given birth to very successful projects mostly in the airport and highway sectors.
In the airport sector, the highlight was the concession of the major Brazilian airports in two subsequent rounds.
On the first round, the three largest Brazilian airports were granted: São Paulo (Guarulhos), Campinas (Viracopos) and Brasília International Airports. The winning consortium for the Guarulhos Airport offered a grant payment of R$16.21 billion ($7.3 billion) to the Federal Government in exchange for a 20-year concession contract. Brasília Airport was granted for R$4.51 billion, while Viracopos Airport received an offer of R$3.82 billion.
In 2013, the second round of airport concessions involved other two relevant hubs: Rio de Janeiro (Galeão) and Belo Horizonte (Confins) International Airports. The consortium formed by Odebrecht and Changi Airport won the auction for Galeão Airport with a grant offer of R$19.01 billion. Confins Airport was granted to CCR, Zurich Airport and Munich Airport for R$1.82 billion.
The next steps planned by the Brazilian Government involve the expansion of 270 regional airports, and investments of $3 billion are expected. Additional investments are also expected in airports for Executive Aviation.
On the State and Municipal levels, public procurement proceedings for urban mobility infrastructure projects are being carried out as well, specifically aiming at integrating mobility platforms, such as: subways, monorail, LRV (light rail vehicle), BRT (bus rapid transit), among others.
It is important to highlight that in accordance with Brazilian Law, public procurement proceedings are required to grant long-term concessions as well as to privatise public services and utilities.
In order to accomplish its goals, the Brazilian Government needs and has been trying to attract the expertise of foreign operators, which are able to use their successful experiences in integration of transport modals from around the world.
Where might the funding come from – commercial banks, investment banks, or development banks?
In Brazil, relevant infrastructure projects are mainly funded by BNDES, the National Economic and Social Development Bank, CEF - Caixa Econômica Federal, BNB - Banco do Nordeste do Brasil and BB - Banco do Brasil. There is also a less relevant participation of IDB (Inter-American Development Bank) and IFC (World Bank Group), among other development banks.
In 2012 BNDES disbursed $78 billion and in 2013 this amount increased to $95.2 billion. BNDES allocated $50 billion to industrial and infrastructure projects included in the Growth Acceleration Program – PAC, launched by the Federal Government for sponsoring public works throughout the Country.
Sectors in the spotlight of the BNDES investment forecast for the period between 2013 and 2016 comprise all four transport modals (highways, railways, ports, airports), along with basic sewerage and low income housing. The perspective is fast growth prioritised by concession programs and public budget.
Investment banks also play an important role in the development of the transportation infrastructure in Brazil. Their participation usually takes place by means of direct or indirect investments (as members of the bidding consortia, shareholders of the concessionaire or specific purpose company incorporated for that purpose, etc). Specialised infrastructure funds are responsible for investments in transport infrastructure projects by means of equity investments, debt securities and mezzanine financing structures.
Last, but not least, commercial banks also participate in transportation infrastructure funding. Although they usually do not play the main role in such funding, they are commonly called upon to supplement funding structures, such as offering bridge loans to companies applying to BNDES’ financing.
Claudia Elena Bonelli
About the author
Partner of TozziniFreire’s infrastructure and administrative law practice groups, Claudia has a thorough knowledge of public-private relations and broad experience in the infrastructure sector, having worked on many of Brazil's largest infrastructure projects. With a wide expertise in public sector-related matters, she works on issues related to bids, contracts and administrative covenants, public service concessions, public-private partnerships (PPP) and governmental permits, as well as administrative laws and regulations such as the Fiscal Responsibility Act. Claudia holds an LLM. degree in International Law from the University of Osnabrück, Germany, and is a graduate of the Law School of Universidade Federal de Santa Catarina, Brazil.
Ana Cândida Mukai
About the author
Associate of TozziniFreire’s administrative law practice group, Ana Cândida joined TozziniFreire in 2009. Her experience involves a variety of administrative law matters, such as public procurement and administrative contracts, concession of public services and public-private partnerships (PPP), public companies, administrative corruption, accountability and fiscal responsibility, corporate social investment, regulated sectors, administrative proceedings before public entities and Audit Courts. She has participated in relevant infrastructure projects related to airport, port, railway and water and sewage sectors. Ana Cândida is a contract specialist and holds a master of laws degree in public law from Pontifícia Universidade Católica de São Paulo. She is a graduate of Faculdade de Direito de Franca.
Thaísa Toledo Longo
About the author
Associate of TozziniFreire’s administrative law practice group, Thaísa joined TozziniFreire in 2011. She is familiar with administrative law matters related to corporate social investment, public procurement and administrative contracts, concession of public services and public-private partnerships (PPP), public companies, administrative corruption, accountability and fiscal responsibility, regulated sectors, administrative proceedings before public entities and Audit Courts. She is currently taking a specialising course in Infrastructure Law in GVLaw - Fundação Getulio Vargas and is a graduate of Universidade Presbiteriana Mackenzie.