Ministry says it will comply with “any decision” by the TCU regarding Santos auction

The government is prepared to face legal challenges surrounding the Tecon Santos 10 terminal and will do everything possible to hold the auction in December, National Secretary of Ports Alex Ávila told CNN.

“If we don’t carry it out this year, the very nature of the electoral cycle could jeopardize an auction in 2026,” said Ávila, who fears the issue may become politicized and already has a detailed timeline for the next steps in the bidding process.

With investments exceeding R$5 billion, the new container mega terminal would increase the capacity to handle such cargo at the Port of Santos (SP) by up to 50% as the port nears saturation.
The auction model is currently under review by the Federal Court of Accounts (TCU). However, one of the main interested parties, the Danish multinational Maersk, has already challenged the rules established by Antaq (National Agency for Waterway Transportation) and approved by the Ministry of Ports and Airports in court.

“We’re prepared to defend the technical framework and respond to all questions,” said Ávila.

Current operators of container terminals are barred from participating in the first phase of the auction. They may only participate in a second round if no initial bids are received. Even then, in the event of a win, they would be required to divest their existing assets.

São Paulo state governor Tarcísio de Freitas’s administration (Republicanos) has also joined the debate, formally opposing any kind of restriction.

The case at the TCU is being handled by AudPortoFerrovia, the unit specializing in port and rail infrastructure, and will later be submitted to reporting minister Antonio Anastasia.

Ávila expects a decision from the TCU by the end of August. The ministry would then have 30 days to comply with the court’s recommendations. The public notice would be published in October, and the auction would take place in the second half of December.

The secretary emphasized that the government has no intention of contesting any potential TCU demands for changes to the restrictions adopted by Antaq.

“Whatever the TCU decides, we will comply. Our interest is to hold the auction,” Ávila stressed, making it clear that the ministry does not intend to appeal any court rulings.

Legal dispute
Last week, Maersk filed a case with the Federal Court of the 3rd Region. The company requested an injunction ordering a new public consultation by Antaq to discuss the restrictions on Tecon Santos 10.

According to the company, the agency implemented a rule “that had never even been considered before” without allowing stakeholders to give input. “It’s clear that such an abrupt change should have been subject to a new public consultation,” it argued.

Judge Paulo Cezar Neves Junior of the 21st Federal Civil Court in São Paulo denied the injunction request. He noted that the restrictions are not yet in effect, as the auction model is still under review by the TCU.

“There is no justification for judicial intervention in a sort of prior control,” the judge stated in his decision. However, he gave Antaq ten days to provide explanations and also requested input from the Federal Public Prosecutor’s Office (MPF).

Together with the Swiss company TIL (part of the shipping firm MSC), Maersk is a shareholder in BTP (Brasil Terminal Portuário), one of the major container terminals operating at the Port of Santos.
The other two terminals are Santos Brasil (currently controlled by France’s CMA CGM) and DPW (Dubai Ports).

One of the key debates in recent years has been whether to restrict the participation of shipping companies.

Antaq ultimately did not impose any restrictions of that nature but applied a horizontal limitation — applicable to all current container operators in Santos.

“Antaq’s concern is with competitive aspects. The issue isn’t vertical integration, but market concentration,” Ávila explained.

According to the regulatory agency’s assessment, if Santos Brasil or BTP’s shareholders win the Tecon Santos 10 auction, they could control up to 60% of container throughput. DPW could reach 48%.

Maersk and MSC (partners in BTP) are dissolving their shipping alliance and were not planning to participate jointly in the bidding for the new terminal.

Potential bidders
JBS Terminais, which has operated a container terminal in Itajaí (SC) since October last year, is considered one of the main contenders for Tecon Santos 10.

In seven months, the company reported handling 143,000 TEUs. Antaq has established a requirement of at least 100,000 TEUs in annual container handling experience to qualify for the new mega terminal auction.

CSN (Companhia Siderúrgica Nacional), which manages Sepetiba Tecon (RJ), is also seen as a potential bidder.

Ávila stated that the ministry has already received expressions of interest or inquiries from various multinational companies in the sector.

He mentioned China’s Cosco and China Merchants, PSA (from Singapore), Germany’s Hapag-Lloyd, the Philippines’ ICTSI, the American company Hudson Ports, CS Infra/Simpar, and investment funds BTG and Pátria.

If an investment fund wins the Tecon Santos 10 auction, it must contract a container terminal operator as a subcontractor. The same restrictions applied to current operators will also apply in this case.

Located in the Saboó region on the port’s right bank, Tecon Santos 10 will cover 621,000 square meters and feature four berths.

Once it reaches full capacity in the ninth year of the contract, the terminal will be able to handle 3.5 million TEUs per year.

The auction winner will be required to invest R$ 5.6 billion and will operate Tecon Santos for 25 years.

Source: CNN

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