PPPs en Argentina y Latinoamerica: Reseña.

PPPs in Argentina and Latin America: Overview

Latin Lawyer • Eduardo A Koch • 08 December 2017  

For decades in Argentina there have been discussions regarding the most efficient way through which the state should develop the country’s infrastructure. There was painstaking analysis of whether said development should be implemented and executed through the classic structure of public works, through concessions, or through intermediate or alternative schemes (regarding its execution as well as its exploitation, operation, maintenance and financing) and which is the best alternative for each project to be executed.

Among many other reasons, this is owing to the fact that during past decades there have been no alternatives in Argentina to choose from. Consequently, most of the projects were executed through the scheme of public works (fully paid by the state), and some through concessions fully or partially paid for by the users and the state.

In addition, Argentina has lagged behind in the implementation of innovative new schemes and there was no room for new or creative structures like public–private partnerships (PPPs). Even when during the past decade certain efforts were made to organise schemes similar to what we know as PPPs, some issues prevented their successful application (i.e., incentives for investors, tax benefits, regulatory framework, economic crisis, applicable law, banks concerns for granting loans under such circumstances, lack of access to the international capital markets, etc.).

In fact, during the past decade, banks have been almost absent despite the lack of adequate schemes and reasonable certainty that could allow their involvement in positive schemes for developing infrastructure. And the problem has grown with the passing of time since Argentina is a country with enormous potential and the urgent need for adequate infrastructure to export its products, increase its industrial activity and attract investments. Consequently, there is currently an urgent need to attract new investors and make up for lost time.

In the 1990s, Argentina went through a strong privatisation process, generally applying the concessions scheme, in which the closest structure to a PPP was the BOT scheme. In other processes, tenders were only called for repairs (not necessarily constructions), operations and maintenance of works or services during a fixed term, after which they were transferred or reverted to the public sector. In general, this scheme was applied to highways.

Although in Argentina the literature on this subject has dedicated little analysis to the political issue, there is no doubt that the greater or lesser development of schemes applicable to these modalities has been influenced by political motivations and, above all, by the lack of enough investment and financing (both national and international).

Maybe, in the case of PPPs, it was not correctly seen or assessed that, although this scheme is not the unique alternative for developing a country’s infrastructure, it is, perhaps, the most effective one under certain circumstances.

Only by analysing the drive PPPs have had in countries of other regions around the world, or even in Latin America, it can be easily observed that this tool must not be discarded when thinking about the development of a country’s infrastructure.

Besides, the main multilateral credit agencies have strongly propelled this modality. the World Bank, the Inter-American Development Bank, the CAF (Development Bank of Latin America) and the International Finance Corporation have a strong presence in the region and have made their contributions not only by financing large sectors of the economy but also by providing constant support concerning knowledge and experience on the subject, this being reflected on countless publications both around the region and around the world.

Unfortunately, the Argentine’s debt default in 2001 and the lack of access to the international capital markets during more than one decade have moved Argentina away from this collaboration scenario between the private sector (especially in regard to finances and investment) and the public sector.

Meanwhile, during said period (2001–2015), most Latin American countries made serious efforts to initiate this alternative path of public-private association schemes, generally known as PPPs. Countries such as Peru, Brazil and Chile began, with great success, important infrastructure development projects under this scheme. Then, very modern legislation followed (for example, in Paraguay and Uruguay), which serves as a clear example that these schemes shall not be catalogued from a political point of view but from an essentially pragmatic point of view. They have confirmed that under these public-private association schemes, and disregarding the governing party’s political orientation, the development of this figure has been successful under certain circumstances, even beyond the improvement measures that could be applied for its execution.

This is how the PPP modality has focused on the countries of the region adopting some specific modalities or figures like concessions, DBOF, DBOT, BOT, among others, having covered or now covering financing, construction, operation and maintenance, and, in some cases, also design. The usual payment method for these schemes is through user fees, especially for transportation projects (highways) but also for gas, electricity and water supply networks. In some specific countries, such as Brazil and Chile, the PPP scheme was also used for the subway network.[2]

Nevertheless, there are other very important fields, for which some Latin American countries have already taken the initiative: prisons, hospitals, tribunals, etc.

As we have already mentioned, the countries in the region see PPPs as an alternative development opportunity that entails the participation of the public sector in an alliance with the private sector. Since government resources are scarce in the region, alternative financing mechanisms that help to achieve value for money, such as PPPs, are attractive.

PPPs in Argentina

Almost a year ago, Act 27328[3] on Public–Private Partnership Contracts was passed. It is interesting to analyse the arguments put forward by the Argentine Chief of the Cabinet of Ministers to the National Congress while introducing the bill.

Among other issues to be considered, he highlighted some solid items for the benefit of PPPs, such as the ones described below:

1   The bill surpasses an executive order passed by the Executive and that had been in force without success.[4]

In fact, under this executive order no project took place for 11 years. Two essential factors contributed to the lack of investments:

  • the absence of international credit;
  • the institutional fragility that signifies, for any investor (whether national or international) in Latin America, getting involved in a project that could last for decades and that is regulated by an executive order that might be annulled or amended upon the sole discretion of the standing government. Stability is one of the golden rules of these kinds of projects and, hence, legal protection should be absolute in order to win investors’ confidence, especially when dealing with associative processes and schemes regarding which Argentina has not yet become developed.

It is clear that, until now, in Argentina there has been no political consensus on this subject. This executive order somehow reflected the weakness of the scheme then adopted, which in turn generated certain resistance between investors and participants. Thus, the failure of the above-mentioned figure.

2   The necessary alliance between the public sector and the private sector is ratified for carrying out a well-defined project, with the repayment of the work taking place in the long term and ensuring a reasonable profit.

3   Some benefits concerning the adoption of these systems are highlighted, such as:

  • The advantages of long-term financing, both local and international, through the access to financing sources of enterprises, funds and banks.
  • The government’s transparency grows.
  • Private parties assume most construction risks as well as risks related to the obtaining of funds and to the amount of future income flows.
  • Likewise, emphasis is given to some sectors in which PPPs must be used (and were already used in different countries), and that in our opinion work as a guide for potential participants, such as:
    • roads;
    • ports and waterways;
    • airports and aeronautical services;
    • railways;
    • urban passenger transportation systems;
    • hospitals and lab and research centres; and
    • educational centres.

From the above list, during the last four months, the government has been particularly focused not only on highways and roads but also on housing. This scheme is also under analysis for projects concerning some ports and water resources.

4   The PPP scheme is an alternative contracting modality with regard to the public works and concessions regimes governed by Act 13064 and Act 17520, respectively.

This is another important remark since it is how most countries in the region have implemented the scheme, countries in which the public works regime is still in full force and effect.

Comments on the Argentine Public–Private Partnership Contracts Act (Act No. 27328) and its regulation (Executive Order 118/2017)

We will refer to the most relevant aspects of the new Act and its regulation.

Purpose

The Argentine government passed Act 27328[5] in October 2016 with the aim of promoting private investment in the field of infrastructure. In addition to what we have mentioned in the previous chapter, the message that moved the project to the Congress put special emphasis on the need to use this tool with two clear goals:

1   creating employment; and

2   promoting private investment in alliance with the state.

Shortly after, in February 2017, the Executive regulated said Act.

General guidelines

We believe this Act, together with its regulation, does not differ, regarding its institutions and the subjects it deals with, from other modern legislation on public initiatives for PPP contracts.[6]

Name

The Act on Public–Private Partnership Contracts was named to identify it with PPP contracts since their acronyms are the same.

Throughout the region, however, they have had different names. In Brazil, Colombia and Peru they are defined as public-private associations.[7][8]

Chile does not specifically mention this topic (except with regard to municipalities) since it does not have PPP legislation, but it does regulate this activity through the Act on Concessions and its Regulations.[9]

Uruguay, on the other hand, does name this structure as a public–private partnership.[10]

Scope of application

Not every legislation has been duly clear on the scope of application of these types of acts, maybe with the aim of leaving supposedly non-covered areas within the scope of application. However, legislative technic reasons suggest defining the scope of application of every act by including the individuals and entities covered by it. In this sense, the Act sets forth its scope in Section 1, even when it could have been more precise or accurate and it could have included a more restricted enumeration.

The scope of a PPP contract is quite broad since it can include one or more activities related to design, construction, expansion, improvement, maintenance, supply of goods and equipment, exploitation or operation and financing. Moreover, its scope of application is also pretty broad because it covers the fields of infrastructure, housing, activities and services, productive investment, applied research or technological innovation.

In this sense, as already mentioned, the legislator has followed the guidelines of the most modern legislations across the region.

Abolition of Executive Order 967/2005

We should point out that Executive Order 967/2005 used to regulate the public-private associations’ scheme (without any success due to the reasons described above), but it was abolished by the Act we are analysing herein. This regime was never truly successful since it applied, by default and sometimes in an express manner, the rules on public works and concessions of works and public services as well as the contracting regime of the state; and it applied, in general, the principles and rules of administrative law concerning this subject. Just to give an example, we can mention that the whole selection process had to follow the regulation of the Act on Public Works or Concessions depending on the case.

With very few articles and an annex that regulated only minimal aspects in no more than 12 sections, there were many regulatory and legal loopholes that made it impossible to create an attractive scheme for national or international investments regardless of the above-mentioned issues preventing the application of the PPP figure. On the other hand, its abolition turns out to be necessary given the conflict observed in various of its rules with the regime herein analysed.

Flexibility

A distinctive part of this Act has been the ‘structure flexibility’, which allows a PPP contract not to be strictly limited by predetermined figures but to adapt itself to the needs or limitations of the market and hence to favour the development of this figure in order to generate projects which in turn promote, as we have previously mentioned, employment and investment.

In this sense, the Act itself states that it is necessary to reach the best financing practices on the international level.

Planning

There is no doubt that the types of projects regulated under this Act, due to its magnitude and its social and economic impact, should undertake prior planning that allows for their sizing in terms of generation of employment, social inclusion, budgetary forecasts, offers competitiveness, fiscal incentives, etc. This Act lays down highly relevant requirements on this subject, such as the fiscal impact on budget acts, not only for the project’s initial year but also for estimating the financial effect and the budget for future years; the need of having, beforehand, a flow of public resources; the impact of the generation of employment, etc.[11] Perhaps the legislative technique was not the best since these concepts are included in the chapter named ‘selection procedures’; however, its express inclusion as a condition for approving any project was accurate.

Public works, concessions and PPPs

The Act specifically states that a PPP does not imply in any way voiding, invalidating or restricting the application or validity of the Act on Public Works, the Act on Concessions or the state’s general contracting regime. On the contrary, this Act is passed as an alternative mechanism over those regimes, which are, without a doubt, still valid and suffer no variations.[12] This distinction has been a wise choice and is not far from the practices of the most modern countries, which allow the state to resort to other efficient mechanisms for achieving goals of this nature when the state deems it convenient.

It is also extremely important to highlight that the rules and principles of these legislations (public works and concessions) are not applied in a direct, analogical or complementary way to these PPP contracts.

Participants and individuals

These contracts can be entered into by and between the state (by itself or by means of its centralised or decentralised bodies) and private or public individuals or entities.

The Act specifically states that both the state and its companies or corporations, as well as the provinces, the autonomous city of Buenos Aires and the municipalities, can take part as contractors. To that end, corporations with specific purposes can be created by determining the participation these entities shall have.

Variations to the contract

The state always keeps the power to modify up to a 20 per cent of the amount of the contract but the previously mentioned conditions must be observed, preserving the financial-economic equation of the contract and adequately compensating the alteration.

Financial-economic equation

The Act sets forth that the regulation must protect the financial-economic equation. This reference seems correct to us in order to clear any doubt regarding what is called ‘adjustment’ of the contract or its ‘price variation’. The regulation establishes, in great detail, the formulation of appropriate schemes for these purposes and, in case of controversy, the possibility of establishing technical panels.

In particular, the regulation establishes the preservation of the financial-economic equation hence following the Act’s guidelines.[13] In this sense, it clearly orders that the PPP contract shall have mechanisms for re-establishing, within a maximum term set in the bid specifications, its original financial-economic equation when this is seen significantly altered by unpredictable reasons at the time of its allocation and external to the party invoking the imbalance.

Conditions and requirements for determining the need for a PPP contract

The Act sets forth, in detail, which are the conditions, premises and requirements to bear in mind when entering into these types of contracts. This is why its Section 4 is not regulated: pursuant to the aforementioned, it is enough by itself. Hence, the following standards must be included in the state’s assessment: efficiency, efficacy, terms (no longer than 35 years), economic profitability, social inclusion, generation of employment, intergenerational solidarity, participation in small and medium enterprises, development of the local capital market, preservation of the environment, and bidders’ competition, among others.

Participation in other corporations

An important exemption regarding involvement in other corporations has been established by way of regulation. In fact, the Act’s regulation clearly sets forth that the requirements and limitations concerning necessary capital and reserves, both legal and voluntary, for participating in other corporations (and laid down by Section 31 of the Corporations General Act) shall not be considered under this Act. This gives place to a clear exception for allowing corporations in general to participate in these types of projects by means of their participation through other corporations without needing excessive capitalisations, or even sometimes capitalisations that turn out to be impossible to assume when entering into these contracts.

Stamp tax

The regulation also releases these contracts from the stamp tax obligation. This is also a relevant issue to point out given the significance of the amounts at stake and the cost overrun implied by the stamp tax since it is applied over the contract’s total amount.

National or international tenders

The Act sets forth that the procedure for choosing the contractor shall be done based on the project’s technical complexity, on the local companies’ capacity for taking part in them, on the available contracting capacity, and on the origin of the funds when dealing with projects that have or require external funding, among other requirements.[14]

Technical panels

Technical panels are a hallmark concerning previous legislation on the subject. Although the Act seems to refer to this figure only in a partial way,[15] its regulation clearly covers this figure, which without a doubt is highly important since in most opportunities it can prevent the opening of an arbitral or judicial process, too costly for the parties.

Unless otherwise provided for, panels shall be made up of five members, who may be engineers, economists or lawyers, and shall be expressly authorised by means of a list prepared by the Public–Private Partnership Unit through the contest.

A significant item to bear in mind is that, in order to request the involvement of technical panels, a previous objection or administrative claim is not needed.

Any matter, whether patrimonial, technical or interpretative, can be brought before the panel for its consideration.

The panel’s decisions shall be expressed through recommendations, which shall only be binding if they were not objected by the parties according to the bid specifications; in which case, the matter shall be referred to the corresponding judicial or arbitral court.

Another relevant note regarding technical panels is that once the contract was entered into, any matter (except for termination due to public interest reasons) shall be brought before the panel for its consideration and, hence, the parties shall not resort to judicial nor arbitral procedures until the panel renders its recommendations (except in case of temporary injunctions).

Guarantees

Broadly speaking, we can say that the guarantees hereby specifically regulated are not different from the ones usually covered by these types of projects. This means that the following guarantees apply: maintenance of the offer, contract compliance, construction and exploitation.

Based on good judgment, the regulation states that the guarantees’ nature, form, amount and currency shall be determined for each specific case.

Arbitration

For any dispute that could arise in relation to the execution or construction of the contracts, compromise or arbitration mechanisms may be set, including the option, depending on the case, of extension of jurisdiction. Extension of jurisdiction shall be approved, in an express and non-delegable basis, by the National Executive and notified to the National Congress. For both cases (i.e., arbitration and extension of jurisdiction) we say ‘they may’ and not ‘they shall’ since this needs to be established by the bid specifications and other tender documents. However, for almost all cases, technical panels and arbitration mechanisms will be established. The regulation clarifies many aspects of this part of the Act. Hence, it is determined that arbiters may be one or three and they shall be appointed arbitrators pursuant to the most modern legislation practices. On the other hand, it seems logical to refer to arbitration given the previous existence of optional technical panels for cases in which divergences arise, as we have already mentioned.

Anti-corruption

A particular aspect that was not previously regulated in detail in Argentina with regard to these types of contracts is the incorporation of a complaint reception line that shall be regulated in the bid specifications. Due to the need for transparency along the whole process, we believe the inclusion of a specific rule on this topic is a great asset.

Execution’s regulation and control

The Act provides that the state has broad supervision and auditing powers with regard to the projects’ execution and exploitation. Besides, it sets forth that bid specifications could foresee the possibility of resorting to external auditors (who shall demonstrate technical aptitude, independence and impartiality, as well as national or international experience in the subject).

The regulation specifically mentions and incorporates the figure of the technical auditor, another wise choice for covering the need for projects to be performed in due time and manner and for controlling, in this way, the quality of the performed tasks and their adaptation to the established work schedule. However, in turn, this can also favour the contractor since, by means of an appropriate and diligent handling and administration of risks and registry of innumerable events that could occur during the execution or operation of the services provided for in these contracts, a path is created for the potential recognition of incidents and situations reported in time so as to later claim for the rearrangement of the financial-economic equation set forth by the Act or to claim for the extension of the work schedule due to reasons non-attributable to the contractor.

Besides, this chapter[16] includes thorough rules regarding the aptitude conditions the technical auditor should meet, the guarantees to be produced by the auditor, the auditors’ selection process, the production of auditors’ lists for their possible use in different processes, etc.

Public–private partnership unit

The Act establishes that the regulation must create a body in charge of centralising all PPP contracts. This body shall provide advisory, operational and technical support for the stages of project formulation, preparation of bid specifications and contract execution.

In general, this body has all the typical powers these types of Units have in most countries with modern legislation. The legislator chose a concentration scheme, instead of a decentralisation scheme.

The private-public partnership unit was organised by the regulation.[17]

The same criterion was followed by Uruguay, Chile and Colombia.

However, it would have been desirable for the Act to clearly identify the application authority in this subject, such as in advanced legislation countries (for example, Peru and Uruguay) which expressly point at the Ministry of Economy as the body in charge. In Argentina, the executive order established that the PPP unit is within the scope of the Ministry of Public Finances.

Compensation for early termination and financial liability of the parties

One of the Act’s key aspects is its express regulation regarding this compensation when stating that, before taking possession of the assets, compensation must be fully paid out to the contractor according to the valuation methodology and determination process established in such respect by the regulation and by the relevant contractual documentation. In no case might such compensation be lower than the non-depreciated investment. Furthermore, the repayment of financing applied to the development of the project shall be secured in all cases (Section 10). This does not imply that the contractor shall not be liable for damages that benefit the contractor itself, and that were provided for in the contract. The parties’ liability shall be subject to the provisions of this Act, its regulation, the bid specifications and the contract. Hence, it is of the essence to analyse, case by case, the Act’s extension along the whole contract and specifically concerning its termination. The relevant rules from the Argentine Civil and Commercial Code shall apply by default.[18]

The Act also clearly states that, in case of compensation due to termination for reasons of public interest, no rule regulating restrictions shall apply. It would have been desirable for the regulation to determine, in more detail, the scope of compensations for all cases of termination.

Bid specifications – their importance

An aspect to bear in mind is that most part of the specific regulations for PPPs shall be determined by the bid specifications. In this sense, it will be reasonable to bear in mind some practices that make for their uniformity according to the subject, so as to avoid having to control each section of said bid specifications and verifying, in each case, that all matters essential to the parties are covered.

If the chosen legislative technique is fully observed, it will be verified that most issues are left to the bidder’s discretion, a bidder who will not always be the same person nor will necessarily have (even when desirable) the same criteria and principles.

Therefore, the revision of bid specifications, as well as of the contracts that incorporate them as reference through Annexes in most cases or that refer to them according to priority, shall become an essential topic when verifying the coverage of all aspects delegated by judicial and regulatory channels to these contractual documents.

Argentine General Auditing Office

The Argentine General Auditing Office shall include, in each annual plan of action, the auditing of all existing PPP contracts, as well as their development and results. This provision is of great importance since it grants the state a highly valuable tool for the assessment of the programming, execution and compliance level of PPP contracts given the prestige of such governmental office.

Section 22 of the Act (which imposes this obligation or power on the Argentine General Auditing Office) was not regulated.[19]

Promotion of the national industry

As a protection measure for national companies, the Act states that, in regard to the provision of goods and services, at least 33 per cent of the components shall be national.[20] Moreover, preference shall be given to those bids containing national goods (pursuant to Act 25551). This regulation rules certain exceptions or mitigations to this regime when regulating these aspects in particular.

Infrastructure projects in Argentina – PPPs, concessions and public works

Argentina’s new administration has made efforts with the aim of attracting investments into the infrastructure sector.

The legal framework we have been commenting on is an essential tool for achieving this goal.

Moreover, there is no doubt that, in order to return to the international markets, Argentina has developed interesting business opportunities.

According to the Argentine Investment Agency, investment projects of approximately US$260 billion[21] have been detected among the diverse infrastructure sectors, which include, among others, energy, mining, transportation, ports, airports, housing, water supply networks, etc.

This ambitious development project will be implemented through different legal figures, such as public works, concessions and PPPs.

To these ends, it should be taken into account that business opportunities under the PPP scheme are still in their initial stages, since the Act was regulated only seven months ago, but there already exist several projects under this scheme.

Among the areas to point out, we can mention the following:

Transportation

Roads

A private investment of approximately US$55 billion is planned for already existing ‘road corridors’ and also for new highways.

Part of this investment shall be allocated to corridors already concessioned under the Act of Concessions (Act 17520).

Another important stage of this investment will be developed under the PPP scheme.

Projects have been recently launched and, even when optimistic dates for tenders have been planned for the year’s last quarter, it can be assumed that the process will be delayed beyond said date.

A particular case to be mentioned is the project named ‘Paseo del Bajo Highway’, in the City of Buenos Aires, which was thought to reduce the city centre’s traffic (especially in regard to trucks) through the construction of tunnels of more than 5km in the heart of the City of Buenos Aires. Its tender took place recently and works have been initiated. This project is being carried out through public investment.

Railways

The freight sector faces a huge challenge in Argentina since, in the last 20 years, it has been subject to under-investment. The government is determined to recover a freight transportation capacity of at least 100 million tons per year. This process is expected to recover 20,000km of railways by 2035. This is the most ambitious railway infrastructure plan of the past decades. There are also plans to improve or even recover some railway branch lines’ freight networks: San Martín Cargas, Belgrano Cargas, Urquiza Cargas and Bahía Blanca-Añelo.[22]

Regional express network

The regional express network is an important project for joining the different railway networks that run along the proximities of the city of Buenos Aires. An investment of approximately US$8.5 billion will be needed. The bid specifications were already issued and they are currently undergoing the bidding process. Its construction will take around seven years. It will be carried out through public investment.

Ports

Buenos Aires port

An interesting project is the concession to modernise, expand and operate the country’s largest port. This project will be carried out under the PPP scheme.[23]

Subway network

Metropolitan BA subway

There are plans to modernise three lines and build a new one. This will improve Buenos Aires’ subway network.

An investment of approximately US$1.4 billion will be needed and its construction will take around seven years.[24]

Airports

During the past two years some airports were improved and renovated in regard to its infrastructure. This trend will continue and a major investment is expected concerning airports’ modernisation and expansion, as well as in regard to the building of new terminals and technology innovation, particularly in the cities of Buenos Aires, Mendoza, Comodoro Rivadavia, Tucumán and Iguazú.

Calls for bids for new projects are planned to take place this year.

Water and sanitation

The government has launched important projects for the improvement and expansion of water pipelines and water treatment plants, such as the Emisario Berazategui Project and Planta Depuradora Norte Project, among others. Their development is planned to be done through public investment. Multilateral agencies are expected to provide parts of the funds to develop Emisario Berazategui Project and Planta Depuradora Norte Project.[25]

Power generation

During the present year, many bidding processes for the expansion of the country’s hydro and thermal capacity took place, as well as projects to improve the power grid. Investment projects of approximately US$20 billion are expected.

Tenders will be launched this year for using organic sewage and industrial waste as fuel sources. Some of these projects will be developed under the PPP scheme.

Aqueducts

The provinces of La Pampa and Catamarca are planning two projects for the provision of drinking water through a PPP scheme. The projects are expected to begin this year and the construction period will be of around 36 months for each project. Their value is estimated in US$184 million.[26]

Irrigation

Argentina has a huge territory that could be improved by irrigation. There is a masterplan that gathers 17 Argentine provinces. The province of Río Negro is launching a project to irrigate 71,000 hectares, a project that includes the construction of a diversion dam, infrastructure, channels and distribution points. The project is expected to start by the end of this year.

The province of Chubut is also developing a similar project under the PPP scheme. The project value is estimated at US$342 million.

Two attractive projects under the PPP scheme are also undergoing two different bidding processes. The first one implies a US$600 million tender for a project called Portezuelo del Viento in the province of Mendoza. This process is opened for EPC companies. Its construction will take around 60 months. If the PPP scheme is not agreed on, the federal government will provide the needed funds.[27]

Renewable energy

In 2016 Argentina launched a very successful bidding process that concluded with 59 awarded projects to produce 2,400MW.[28]

The Project is called RenovAr Ronda 1 and its bidding process started in 2016. [29] A second round for bids has been recently initiated.[30]

Tenders will be opened for wind, solar, biogas, biomass and hydro (50MW) energy.

The legal framework (Act 27191 and Act 26190) promises extremely attractive incentives for investors, including tax incentives. Bidders that participated in RenovAr Ronda 1, have offered six times the maximum capacity authorised by the Ministry of Energy. The second bid process (RenovAr Ronda 2) seems to be success given the interest of investors and developers.

The government expects to have, by 2025, 20 per cent of renewable energy from the total installed energy capacity.

It is important to point out that some of the projects are undergoing the bidding process or previous stages concerning state agencies’ approval.

There are also many other projects currently undergoing bidding processes but they were not included in this chapter since that would have exceeded its scope. The above described projects are merely examples of the important investment process that Argentina is planning for this year and in the coming years.

Notes

[1] Eduardo A Koch is a partner at Nicholson y Cano Abogados.

[2] The ‘Linha Amarella’ is the most modern subway network in San Pablo. The subway network in Santiago has also improved the quality of transport.

[3] Published in the Official Gazette on 30 November 2016.

[4] Executive Order 967/2005.

[5] Published by the Official Gazette, 30 November 2016.

[6] For more information on legislation in the region, visit www.worldbank.org.

[7] Act 11079, Section 2 (Brazil).

[8] Act 1508, Section 1 (Colombia) – Act 1224, Section 1 and Executive Order 1012, Section 3 (Peru).

[9] Executive Order 900, MOP (Ministry of Public Works).

[10] Act 18786, Section 2.

[11] Act 27328, Section 12.

[12] Act 27328, Section 2.

[13] Executive Order 118/2017, Section 9, subsection 7.

[14] Act 27328, Section 12.

[15] Act 27328, Section 9, Subsection w.

[16] Executive Order 118/2017, Section 21.

[17] Executive Order 118/2017, Section 2.

[18] Act 27328, Section 11.

[19] Act 27328, Section 22.

[20] Act 27328, Section 12.

[21] See the National Agency for Investments and Trade’s website (www.investrade.gov.ar).

[22] For more details on the infrastructure projects, see www.investrade.gov.ar.

[23] www.investandtrade.org.ar.

[24] For more details on the metropolitan subway program, see http://www.buenosaires.gob.ar/subte/planeseinversiones/plan-de-infraestructura.

[25] The description of the AySA infrastructure programme and coming bidding processes can be found at www.aysa.com.ar.

[26] For more details on the La Pampa-Catamarca aqueduct, see www.investrade.gov.ar.

[27] See www.investandtrade.org.ar.

[28] Ministry of Energy and Mining Resolution No. 136/2016.

[29] The bidding process is known as RenovAr 1.

[30] RenovAr Ronda 2 was launched by Resolution 275-E/2017, recently issued by the Ministry of Energy and Mining (August 2017).

 

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