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1. (U) Summary: In recent meetings with emboffs and Treasury desk officer, GoB officials expressed cautious optimism on the progress of legislation governing public-private partnerships (PPPs) and its initial application to infrastructure bottlenecks that threaten Brazilian exports and GDP growth. Private consultants and World Bank representatives provided somewhat less confident assessments of the federal-level PPP experiment, predicting further delays in passage of the legislation and voicing concerns on the tendering process and financing possibilities. Minas Gerais state's PPP program compares favorably with the shaky start of the federal PPP effort, according to one consultant. Even if and when the legislation passes, many details will remain to be worked out with the first PPP bids and contracts - perhaps too much uncertainty for most of the private sector to bear. End Summary.
PPP Bill Working Through the Senate . . .
2. (U) The PPP bill (PL 2546/2003) passed the Chamber of Deputies in March and is now under review by several Senate committees. Ministry of Planning officials, while emphasizing that the PPP bill enjoys broad, non-partisan support, highlighted two areas of concern in Congress and the GoB's plans for resolving them. The precedence or seniority of PPP contracts in the order of government payment obligations, just after debt and salaries, posed a constitutionality issue for some, forcing the removal of the offending article in the Chamber of Deputies. Demian Fiocca, economic advisor to the Minister of Planning, explained that the GoB still considers precedence a necessary complement to the guarantee fund to attract PPP investors. The GoB will not fight to reinstate the article in the PPP bill, but plans to include the PPP precedence language in the annual law that enables budget expenditure, reasoning that Congress will not object to a measure that requires their approval every year.
3. (U) Fiocca further maintains that the guarantee fund, made up of real estate, blue chip stocks and other liquid assets to include budgeted funds, provides the added security investors require to invest in Brazilian PPPs. He noted that the specifics of the fund's content and management would not be decided upon until after the passage of the primary PPP legislation, thus requiring an appendix to the law. Fiocca asserted that discussions with interested parties in the private sector indicate satisfaction with the general outline of the guarantees provided for in the legislation, with the caveat that the specifics in the appendix be "well drafted." Dealing with exchange-rate fluctuations posed by external financing is another concern of potential local investors, Fiocca said. He admitted that providing a hedge would be too costly, but talked of the possibility of setting interest-rate limits and having lenders assume timing risks, effectively decelerating repayments in devaluation years and accelerating in years of currency appreciation.
4. (U) The classification of GoB and state PPP expenditures as either debt or recurring costs for accounting purposes is the second Congressional sticking point. The original bill specifically empowered the Federal Finance Ministry to assess each PPP contract to make this determination based on the relative level of private risk involved - little or no private risk would warrant a debt classification while substantial private risk, where supplemented with public payments, would render a recurring-expenditure classification. According to Fiocca, congressional representatives of states that desired greater accounting flexibility in the classification of their PPPs forced the removal of this provision from the bill.
5. (U) This has sparked some IMF concern that PPPs could create unacknowledged liabilities in public accounts. Fiocca argued that this fear was overblown, despite the deletion of the clause, since under the terms of Brazil's Fiscal Responsibility Law (LRF) the Federal Finance Ministry will continue to determine how to treat state-level obligations. By allowing the federal government to set repayment terms on the state debt to the federal government and limiting the contracting of new debt, the LRF effectively requires the states and municipalities to produce primary surpluses to be able to service their debt. Fiocca explained that the deleted article was redundant and thus unnecessary, as the Federal Treasury would always retain the ability to account for PPP expenditures by virtue of the precedence of the Fiscal Responsibility Law (complementary law, inferior only to the constitution) over the PPP law (ordinary law.)
6. (U) Approval of the text by three Senate committees would eliminate the need for a plenary vote, but further changes in the Senate would send the bill back to the Chamber of Deputies. Several of our interlocutors outside the GoB predict the measure will be returned to the Chamber and may not be finally passed until the end of 2004. Planning Ministry officials did not speculate on a passage date, but did predict the start of 2- 3 pilot projects by the end of the year with up to R$ 5 billion (US$ 1.6 billion) in GoB investment. Looking to stimulate GDP growth, Fiocca said the GoB wants to focus these first projects on multi-modal solutions to logistical bottlenecks, aimed primarily at agribusiness exports - ports, roads and railways.
. . . as High Risk Profile Remains
7. (U) Noting the difficulty in legislating away the political risk of investing in Brazil, representatives from the World Bank and PricewaterhouseCoopers (PWC) did not agree that the guarantee fund was alone sufficient to attract investment in PPPs. They cited a weak judicial system and the tendency to resort to inflexible legislation and the inability of regulatory agencies to guard against abuse and corruption as further complications. The current uncertainty of the regulatory regime and the ideological divide within the ruling PT party on such key PPP sectors as water and sanitation also do not bode well. A World Bank water specialist suggested that the Ministry of Cities, which has jurisdiction over water and sanitation projects and leans far to the left, would not likely favor private-sector solutions to Brazil's water and sanitation service woes. Conflicts between state and municipal authorities over water rights as well as the GoB's dicey draft regulatory legislation for the sector (allegedly prepared in secret) would cause any investor to think twice in evaluating a
SIPDIS Brazilian water sanitation PPP proposal.
8. (U) A PWC representative warned of pitfalls in the details of how PPP contracts will be tendered and how arbitration would be handled. The bill addresses some of these issues superficially, but key determinations will likely be made only with the first PPP contracts. PWC is working with the Ministry of Planning and the PPP management authority (comprising the Ministries of Planning, Finance and Civil Household), sharing with them model PPP contracts from other countries and helping them to set project priorities. The PWC rep told us that Brazil is the first country with a sub-investment grade credit rating to attempt PPPs, making the undertaking very much an experiment, particularly given the culture of distrust between the public and private sectors.
9. (U) Echoing concerns similar to those of World Bank officials, the PWC rep noted the challenge of obtaining the value for money that PPPs promise in a judicially weak system that tends to over-legislate. Warning of the currency risks, he wondered what institutions would finance Brazil's PPPs, noting that BNDES would not be able to shoulder the burden, and expressing uncertainty about IDB and World Bank readiness to invest heavily. He characterized the GoB's announcement of its 23 desired pilot projects in December 2003 as ill-advised, coming before legislation was in place and without carefully planned investor proposals for each project. Some of the 23, he said, are actually in-process concession projects that have lapsed or failed. In his opinion, the international roadshow that GoB officials mounted in the U.S., Europe and the Middle East late last year did not offer potential investors a reassuring picture of Brazil's readiness for PPPs.
Bright Spot in Minas Gerais
10. (U) Our PWC contact juxtaposed "misguided" federal actions with those of Minas Gerais (MG) state, where PPP legislation was passed and 5 pilot projects designated in 2003 without great fanfare. MG is the only Brazilian state to pass PPP legislation; other states such as Sao Paulo have draft bills but are awaiting passage of the federal law before moving ahead. The MG law does not address tendering procedures, preserving flexibility, according to PWC. He said the state recently held a public meeting on a PPP water project, already providing potential investors details on project specifics. The smaller scale of these projects, the improved financial profile of the state, and its business-friendly administration, may be the best available launching pad for Brazil's PPP experiment, he argued.
11. (SBU) The Lula administration's goal is to develop a hybrid version of a PPP that corresponds to Brazil's needs and circumstances. Key elements of success, such as firm high- level political commitment, clearly exist. Guarantees that might be judged as transferring too much risk to the public sector in a more stable environment are essential in Brazil's context. However, as one consultant noted, dispute resolution procedures, availability of long-term private capital, and the development of in-house expertise in the federal PPP management authority remain outstanding requirements. The expectation is that this can all be addressed as "pathfinder" projects develop and act as the catalyst to resolve policy and legal issues not yet imagined. Once legislation is passed, the difficult work of the management unit will begin, as it assesses the pilot projects and develops the first contracts. These partnerships are long-term solutions, and Brazil's hybrid PPPs will likely need to incubate for longer than their champions would like.