TCU ministers split over bidding model for Tecon Santos 10 terminal in Santos

The controversy surrounding the tender for the megaterminal of containers at the Port of Santos, Tecon Santos 10, was reflected in the plenary vote of the Federal Court of Accounts (TCU). In a discussion held on Tuesday afternoon (18) about what the competition rules for the auction will look like, divergent positions have already emerged: while the reporting minister, Antonio Anastasia, defended competition in a single phase, Minister Bruno Dantas voted for a two-stage competition, in which the first stage would be restricted to shipping companies.

In the middle of the discussion, Minister Augusto Nardes said he would need to further analyze some points raised by the minister and requested a case review, suspending the vote for 15 days. The matter is expected to return to the agenda on December 8.

Although the vote has been suspended, two ministers have already demonstrated alignment with Dantas: Nardes himself, despite requesting the review, recorded his vote in favor of Dantas’ proposal. In addition, Minister Jorge Oliveira signaled that he will “very likely” converge with Nardes’ vote — he even questioned the reason for the suspension, given that the vote had already been cast, but TCU president Vital do Rêgo decided to maintain the postponement.

The project, which the government plans to tender in 2026, is expected to contract R$6.5 billion in investments.

In Anastasia’s report, he defended an auction open to all groups, with the condition that if a current terminal owner wins the bid, they must divest the existing asset. According to him, this possibility is already included in the model proposed by the National Waterway Transport Agency (Antaq), which requires divestment should an operator win in the second stage. “It seems to me that by not accepting divestment in the first stage, the regulatory agency violates the principle of isonomy,” he said.

The counter-vote from Minister Dantas took a different direction. He defended the execution of the auction in two phases, as initially planned by Antaq. However, with the difference that the first stage would not be open to all container operators in the port — BTP (Brasil Terminal Portuário), Santos Brasil, and DP World — but rather only to shipping companies, which would include Maersk and MSC, owners of BTP, and CMA CGM, owner of Santos Brasil. The rationale for that exclusion would be the vertical integration of shipping companies in the port.

“Shipping companies that own terminals don’t just profit from tariffs; they profit from excluding other carriers that could have shipping lines to that same port,” he said. “The Port of Santos historically has three major terminals. One is a joint venture between two of the world’s biggest shipping companies, MSC and Maersk. The second terminal, which was neutral until the beginning of this year, is Santos Brasil and was sold this year to a French group (CMA CGM).” He added that the purchase price of R$10 billion was not justified by the physical assets, but by the exclusion of other carriers.

In his vote, Dantas stated that “in an ideal world,” the reporting minister’s observations would have his endorsement, but this is a market with players that have high capacity to interfere in Brazilian commercial activity. He added that he has “a more skeptical, more pessimistic view of how the market behaves.” For him, “the regulatory agency may be accused of not offering the best solution to the problem that it itself identified,” but it cannot be said that there is illegality in the proposed model. Dantas stressed that Antaq’s auditors are those with legal competence to decide. “Talking about illegality is serious.”

After Dantas’ remarks, Anastasia spoke again and rebutted the arguments. The reporting minister said that the topic of vertical integration had already been rejected by Antaq in the auction analysis. “Antaq states in a technical note: ‘although market risks are relevant (…) no elements were identified that justify the exclusion of shipping companies. It was concluded that, given that these risks are limited and can be mitigated, the possibility of vertical integration does not in itself constitute a concrete threat to competition’.” He stressed that the report from the Ministry of Finance also cites Antaq’s view that the risk of verticalization is not considered significant.

Anastasia also stated that the neutral terminals, not controlled by shipping companies, could just as well sign agreements with carriers.

History of the dispute

The competition rules for the tender have been the target of heavy controversy and pressure from private companies, especially since June, after Antaq defined restrictions that would prevent all groups that already operate containers in the Port of Santos from participating in the first stage of the dispute — which would bar Maersk, MSC, CMA CGM and DP World. These companies would only be able to compete in the second stage of the tender if the first one did not attract bidders.

Maersk went to court to overturn the auction model, but has not succeeded so far. Maersk and MSC, partners in BTP, are the main stakeholders in reversing the decision. In opposition to the stance of the regulatory agency, other governmental bodies have issued opinions in the opposite direction.

SEAE (Secretariat for Economic Monitoring and Regulation) of the Ministry of Finance recommended a single-stage auction with the obligation that, if the winning company already operates a terminal in Santos, it must divest. This alternative is favored by Maersk and MSC, which, according to sources, plan to dissolve their partnership in BTP and would already be willing to sell their stake if they win the Tecon 10 auction.

The technical opinion of the TCU also pointed in the same direction, recommending a one-stage auction without competition restrictions but with measures to mitigate possible concentration effects, such as the sale of assets if an operator wins.

Tecon 10

The federal government plans to tender the megaterminal in 2026, which will cover 622,000 m² in the Saboó region, on the right margin of the port. The contract is expected to last 25 years, with possible renewal for up to 70 years. With four berths, capacity is projected to reach 3.5 million TEUs per year.

The history of the megaterminal tender has been troubled for years. Under the previous administration, companies disputed the competition rules for the project, then called STS10. At that time, the main dispute was between Santos Brasil — which criticized allowing shipping companies to participate — and Maersk and MSC, which defended their right to compete. Now, with Santos Brasil under the control of CMA CGM, the dispute no longer exists.

In the current administration, the project was nearly abandoned. The Port Authority of Santos even proposed dividing the Tecon 10 area among a passenger terminal and other projects, which would reduce the area allocated to the container terminal. However, faced with logistical bottlenecks and congestion at the port last year, the government decided to return to the original project, expanding container capacity in Santos, which is already operating at its limit.

With the revival of the plan, the controversy shifted to the risk of market concentration should a current operator take over the new area.

Source: Valor Econômico

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