Federal Law No. 13,529 (“Law”), dated December 4, 2017, and converted from Provisional Measure No. 786/17, was published in the Federal Official Gazette, in addition to Federal Decree No. 9.217 (“Decree”), dated December 4, 2017, which regulates the referred Law.
The Law aims to support the structuring and development of projects in the Brazil by the various federal bodies, since it authorizes the Union to participate in a fund whose sole purpose is to finance specialized professional technical services in order to support the structuring and development of concession projects and public-private partnerships of the Union, the States, the Federal District and the Municipalities, in an isolated or consortium regime, up to the limit of R$ 180 million.
The Decree, on the other hand, provides for the formation, operation and legal capability of the Participation Council in the Fund to Support the Structuring and Development of Concession Projects and Public-Private Partnerships of the Union, Federal District and Municipalities, and authorizes the federal government to proceed with the payment of quotas in a fund managed by Caixa Econômica Federal.
This measure aims to overcome a hurdle faced by, in particular, the municipalities of the country, which do not have the technical expertise and personnel to structure or even to evaluate the projects submitted by the private sector through the Expression of Interest Procedure (Procedimento de Manifestação de Interesse - PMI) or Unsolicited Proposals (Manifestação de Interesse da Iniciativa Privada – MIP).
In line with this objective, the new Law also amends Article 2, §4, I, of Federal Law No. 11,079/04, the Federal Law of PPPs, to reduce the minimum value of public-private partnership agreements to R$ 10 million, making possible the structuring of public-private partnerships in smaller municipalities.
Although this presents a positive step, the opportunity to promote more relevant changes in the PPPs Federal Law is wasted, such as a solution for the calculation of expenses under the limit set forth in Article 28 of that legislation, regarding the limitation to the commitment of 5% of Net Current Revenue of the respective federal body.