Government–TCU clash threatens to push back Tecon 10 auction once again

A dispute between the federal government and the Federal Court of Accounts (TCU) could further delay the auction of Tecon 10, the megaterminal at the Port of Santos.

According to individuals close to the court, ministers were irritated by the Executive Branch’s willingness to hold the bidding in a single phase. The information was published by Folha last Saturday (22).

The discontent stems from the fact that the government cannot choose a bidding model previously rejected by the TCU. If it does so and returns to the Court with new guidelines and public policy, the matter would have to be analyzed again by the ministers.

The consequence would be a significant delay in granting the asset. The auction will not take place this year, as the Ministry of Ports and Airports had planned.

As Folha previously reported, people linked to the Civil House defend conducting the auction in only one phase, which has frustrated the TCU.

The matter is under discussion at the Court. The decision was postponed after a request for review from Minister Augusto Nardes. The thesis of Minister Bruno Dantas, rapporteur of the project, is expected to prevail. His recommendation is that the auction take place in two rounds. In the first round, the participation of shipping lines that own terminals within the port complex would be prohibited.

It is a version quite similar to the recommendation of Antaq (National Waterway Transport Agency), but the regulatory agency proposes that, in the initial phase, all interested parties that own assets in Santos be barred — whether shipping lines or not.

Market participants believe that only shipping companies — large companies that own vessels — would have the financial capacity to operate Tecon 10. The expectation is that the megaterminal will handle half of the cargo of the largest port in Latin America.

If adopted, the restriction would exclude from the auction some of the world’s leading companies in the sector, such as Maersk, MSC (partners in the BTP terminal), and CMA CGM (owner of Santos Brasil).

Below is a historical record of long-haul container handling at the Port of Santos starting in January 2022. The chart was prepared with DataLiner data and excludes cabotage, transshipments or other internal movements:

Long-Haul Container Handling at the Port of Santos | Jan 2022 to Sep. 2025 | TEU

Source: DataLiner (Click here to request a demo)

The session in which the rapporteur, Minister Antonio Anastasia, presented his opinion took place last Tuesday (18). The score so far is 3 to 1 in favor of Dantas’s thesis. Minister Jorge Antônio de Oliveira indicated he would vote the same way but was interrupted by the Court’s president, Vital do Rêgo Filho. A decision could come on the next 8th.

Once the Court reaches a conclusion, the model recommendation will be sent to Antaq, which will draft the bidding notice within its own timeframe and publish it in the Official Gazette. The auction could be held 30 business days after publication.

The TCU’s position is that, in the final stage of the process, the government cannot act solely on its own will. Ministers were further irritated by statements that the PPI Council would have the final and sovereign word because it is chaired by President Luiz Inácio Lula da Silva (PT).

The Court’s reasoning is that Antaq is the federal government’s regulatory agency, with authority to define the design of the auction. This has been the basis of the TCU’s deliberations. Ignoring the Court’s recommendation would be seen as a sign of disregard.

“[If the government opts for a single phase] It will have to go back to the TCU. The entity with the authority to design the bidding model is Antaq. The PPI does not have the authority to alter Antaq’s model, which has a sovereign decision,” said Vera Monteiro, professor of law at FGV in São Paulo.

“The TCU’s approach has been to participate in these bidding designs before the notice is published. This has happened due to a power dynamic at the federal level.”

According to Folha, some ministers even considered changing their vote in the session on the next 8th.

The TCU has the prerogative to recommend or determine the structure of the bidding notice. In this case, the Court currently tends toward making a recommendation. According to Folha, some ministers considered turning the notice into a determination. After internal discussions, they decided to keep only the recommendation on the understanding that, if the model approved by the TCU plenary does not prevail, the auction could be suspended through an injunction.

According to the Court’s press office, recommendations are related to opportunities to improve the administrative process and their implementation is optional. In September, Minister Benjamin Zymler said that it is standard practice for the government to follow such recommendations.

Determinations, on the other hand, are binding and must be complied with within a set timeframe. The matter is decided in plenary by the Court’s nine ministers.

The Minister of Ports and Airports, Silvio Costa Filho, had already stated that the Court’s position would be respected. He said he was surprised by the possibility of a change in position by the federal government.

“If it is a recommendation, there is no binding force. It is up to the grantor [the federal government] to adopt the modeling path it considers most appropriate, provided it is duly justified,” said attorney Fernando Bernardi Gallaci, specialist in infrastructure, regulatory affairs and government relations at Souza Okawa Advogados.

One of the possible explanations considered by the government is based on opinions from the Ministry of Finance and the technical area of the TCU: that measures to preserve competition, such as the sale of assets that the winning company owns in Santos, would be sufficient to avoid market concentration.

The Public Prosecutor’s Office assigned to the TCU even considered the two-phase auction illegal.

WHAT IS TECON 10
The megaterminal will be built in the Saboó neighborhood in Santos, covering 622 thousand square meters. The project is multipurpose, capable of handling containers and breakbulk. The auction winner will be chosen through a highest-bid model: the company that offers the most money for the right to build and operate the terminal wins the concession.

Capacity is expected to reach 3.5 million TEUs per year. It will be the largest terminal of its kind in the country.

There will be four berths — the locations where ships dock for loading and unloading. The investment forecast over the 25-year concession period could reach R$ 40 billion.

Source: Folha de S. Paulo

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