Understand what is the ‘friendly solution’ that can put an end to the Viracopos rebidding and maintain the current concession

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The process is stuck at the Federal Court of Accounts and allowed the concessionaire to gather arguments to maintain the contract. g1 listened to experts to explain what the alternative is about. Passengers at the passenger terminal in Viracopos Giulia Rodrigues/Viracopos After resorting to the rebidding process as an alternative to the financial crisis, the concessionaire Aeroportos Brasil, which manages the International Airport of Viracopos, in Campinas (SP), may be able to interrupt the process and keep in command of the asset. The eventual turnaround happens because the process has been stalled for 11 months at the Federal Court of Auditors (TCU), after the reporting minister asked the National Civil Aviation Agency (ANAC) for an indemnity calculation. The impasse, added to arguments gathered by the concessionaire, and exposed for the TCU to analyze [veja abaixo quais são], that permanence is more advantageous for the airport’s operation, brought up the chance of maintaining the current concession. The subject is already discussed internally by the Minister of Ports and Airports, Márcio França. However, the concessionaire’s intention to remain is not enough. The decision not to go ahead with the rebidding must come from the federal government. g1 spoke with two specialists to understand what the friendly solution that could put an end to the Viracopos rebidding is in fact and what implications they have. Check it out below. What is the re-bidding friendly solution? The concession contract provides, in case of breach of concession by the granting authority, which is the federal government, the possibility of a friendly solution, provided that the concessionaire proves that it meets conditions to remain in charge of the airport. The information was provided by lawyer Luiz Felipe Pinto Lima Graziano, specialist in concessions. According to him, in the specific case of Viracopos, there was no voluntary non-compliance with the concession contract, but rather a set of factors, “some unrelated to the concessionaire”, which forced the option of re-bidding and made compliance with the bond unfeasible. In addition, the lawyer stated that the expiry of the concession is an option of the Union and not an obligation. “When considering the set of existing variables, it is necessary to remember that the logic of the concession contracts is their maintenance. Rebidding must be considered as an exception, applicable only when the problems cannot be solved in another way that ensures continuity of hiring, in a real less traumatic alternative to the declaration of expiry”, he explained. When does it happen? The lawyer specialized in public and regulatory law Felipe Estevam said that the logic of the rebidding is to ensure the continuity of the provision of services. Therefore, if the concessionaire proves the capabilities and qualifications necessary to continue the undertaking, it is more advantageous and more efficient for it to continue the contractual execution itself. “If so, it will be necessary to undo the addendum already signed, as well as guarantee all the concessionaire’s qualification conditions”, he said. What are Viracopos’ arguments? Before putting the public notice of a possible auction to a vote, the Federal Court of Auditors will analyze five applications for Viracopos placed by the concessionaire as essential for the process to proceed and that indicate the group’s intention to maintain the contract, which has a duration of 30 years. Among the five requests from the concessionaire sent to the TCU, is the argument that, in the event of a new auction, it is possible that the new concessionaire will not take over the enterprise, even if it pays the initial contribution, because Aeroportos Brasil, which the terminal’s management since 2012, says it will only leave if it is completely compensated. In addition, Aeroportos Brasil defends the quality of the terminal’s administration, which broke a passenger record in 2022, to argue that the entry of a new concessionaire would be bad for the airport’s operation. See all the arguments: Argument that the viability of the re-bidding project depends on the amount of the indemnity, bearing in mind that the entire indemnity must be paid by the incoming concessionaire; Argument that there is no economic justification for imposing on the Treasury the duty to settle the indemnity amount, in the event that the initial grant amount is lower than the amount due as indemnity to the previous contractor; Argument that there is a risk that the new concessionaire will pay the initial contribution and not take over the operation of the airport, given that ABV will only leave when it is fully compensated; Argument about the operational excellence of Viracopos, which would not justify a re-bidding process; (The airport was elected the 4th Best Airport in the World by AirHelp in 2022) Argument that there is no technical study that justifies the advantage of the conditions for re-bidding, in violation of the supremacy of the public interest, the principle of legality and the principle of administrative efficiency. Compensation calculation The compensation calculation defines what amount will be paid to the current concessionaire and which of the parties involved will make this adjustment. This is the top priority of Aeroportos Brasil during the rebidding process. The impasse, which made the process not move forward, allowed the concessionaire to gather arguments to defend that a new auction would be more harmful than beneficial to the progress of the terminal. The public notice for the new auction would be voted on by the Federal Court of Accounts on February 1st, but was once again withdrawn from the agenda. Arbitration The concessionaire Aeroportos Brasil Viracopos, which manages the structure, awaits the analysis of the TCU and adheres to an International Arbitration Court, that is, an independent extrajudicial measure to define rules on compensation for investments made, in addition to breaches of contract by the Union, according to the concessionaire. The arbitration had the first decisions last week. The concessionaire made six requests for contractual rebalancing, which it understands to have been the main reason for the financial crisis of the structure that forced the re-bidding process. Of the total requests, the court opted for the decision contrary to the concessionaire by extinguishing from the arbitration process Viracopos’ request for non-receipt of tariffs for lost cargo, which remain in the airport’s warehouse, and determined that this should be agreed between the airport and the IRS. The request for rebalancing due to the non-implementation of the High Speed ​​Train was also denied. However, the concessionaire had a favorable decision on what it considers the most important subject of the arbitration, which are the discussions on expropriations, the concessionaire’s main complaint regarding financial problems. Anac alleges that it did not rebalance the contract in relation to the areas of the airport that were not expropriated because this was conditional on a prior demonstration by the concessionaire that that space would actually be used and, in addition, a “financial loss” had to be proven ” effective with non-expropriation. The thesis was denied by the arbitration court, which increases the possibility of Aeroportos Brasil receiving an amount for this imbalance in the contract. The court will still evaluate the requests in a final decision. In addition to these issues that had the first partial decision, there are still three other requests awaiting judgment: air cargo tariff rebalancing, rebalancing related to Covid-19 and a third on a fine imposed because the concessionaire did not deliver the works within the stipulated period. Two-year deadline On June 14 of last year, the federal government published a resolution extending the Viracopos rebidding process by two years. At the time, the vote on the public notice at TCU had been removed from the agenda precisely because of the request made to Anac about indemnities. Understand the new Viracopos bidding in 4 points The rebidding was the only hope of the current concessionaire after the financial crisis that generated a debt of R$ 2.88 billion – this value is due grants and debts with banks that are yet to expire. The debt is no longer under the concessionaire’s responsibility because it was included in the arbitration. The terminal was the first in Brazil to request the return of the concession. Natal Airport, in São Gonçalo do Amarante (RN), also undergoes the process. Feasibility studies According to the feasibility studies, the new contract for the administration of Viracopos, if there really is a new auction, will last for 30 years, investments of R$ 4.2 billion, total value of R$ 13.4 billion, construction of a second runway and the end of the need to expropriate areas so that the airport complex can be expanded. g1 explained the main changes in four main points. Look here. Rebidding The last judicial recovery plan for the airport was filed with the Justice on December 12, 2019. From that date until the approval date, in February 2020, Viracopos and the main creditors, including Anac and Banco Nacional de Economic and Social Development (BNDES), met to try to reach an agreement and defined that the proposal would be voted on in the assembly as long as Viracopos accepted the rebidding. After being accepted in an assembly, the Viracopos judicial recovery was closed by the Justice on December 10, 2020. From that, the re-bidding process began. In August 2021, Anac approved the re-bidding notice. The concessionaire had already signaled its intention to return the concession in July 2017, but it got stuck in Law 13,448/2017, which regulates the rebidding of airport, rail and road concessions in Brazil and only had the decree published in August 2019. The crisis de Viracopos The crisis in Viracopos worsened in mid-2017, when it expressed its interest in re-bidding, but, due to the non-regulation of the law, it bet on judicial recovery to solve the crisis. Aeroportos Brasil filed the request on May 7, 2018 at the 8th Civil Court of Campinas. Viracopos was also the first airport in Brazil to ask for recovery. The airport has always fought for rebalancing the concession contract by Anac. According to the concessionaire, the agency failed to comply with items that contributed to the structure’s loss of revenue. Infraero holds 49% of the shares in Viracopos. The other 51% is divided between UTC Participações (48.12%), Triunfo Participações (48.12%) and Egis (3.76%), which form the concessionaire. Investments made by Infraero amount to R$777.3 million. Aerial view of Viracopos International Airport, in Campinas Ricardo Lima/Disclosure VIDEOS: learn all about Campinas and Region See more news from the region at G1 Campinas

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