Tunnel between Santos and Guarujá leads TCU to demand explanations from State Government about the contract

The tunnel will extend 870 meters beneath the navigation channel of Porto de Santos; investment will total R\$ 6.8 billion, with contributions from the State and the Federal Government (Alexsander Ferraz/AT)

The Tribunal de Contas da União (TCU) has ordered the State Government to explain why it signed the public-private partnership (PPP) agreement for the construction of the immersed Santos-Guarujá tunnel in January without the participation of the Autoridade Portuária de Santos (APS).

The decision was issued by Minister Bruno Dantas, rapporteur of the tunnel case before the Court, following a formal request by APS. The manager of the Port of Santos states that it is unaware of the terms of the document, although it is required to make a substantial financial contribution to the project.

In an order issued last Friday, Minister Bruno Dantas noted that APS is facing “operational and legal difficulties” in making the financial contribution assigned to it under the PPP “due to a contract to which it is not a party and of which it has no formal knowledge.”

The Minister granted a five-day deadline for the State Secretariat for Investment Partnerships (SPI) and the State Transport Agency (Artesp) to comment on the issues raised by APS.

Background

The impass began after the State Government announced, on January 28, the signing of the agreement with concessionaire TSG, a special purpose entity (SPE) of the Portuguese company Mota-Engil, which won the auction to build the tunnel. APS and the Ministry of Ports and Airports (MPor) did not sign the document.

The following day, the Port Authority publicly challenged the legal validity of the agreement, alleging a “formal defect” and stating that the consent of the Federal Government would be a requirement for the validity and effectiveness of the arrangement, since the project will be implemented in a federal area and will rely on federal public funds.

APS is responsible for 50% of the R\$ 5.2 billion in public contributions provided for in the financial model of the PPP. However, according to information submitted to the TCU, the agreement centralizes all decision-making powers regarding contractual milestones and authorization of disbursements in the State, without APS formally appearing as an intervening and consenting party.

In its request to the Court of Accounts, the manager of the Port of Santos asked that the agreement be amended to formally include it as an intervening party or, alternatively, that the Court issue a ruling granting legal certainty to the federal transfers to be made.

The matter had already been under review by the TCU since 2025. In August of last year, the rapporteur pointed out flaws in the project’s intergovernmental governance, questioning the fact that the State appears as the granting authority for a project to be executed in a federal area.

The parties held a coordination meeting prior to the auction, which took place in September of last year. A delegation agreement was signed authorizing the State Government to carry out the bureaucratic aspects of the project, but APS maintains that it is not an “instrument capable of operationalizing the financial transfer.”

Payment to the company responsible for the tunnel must be made within 60 days after the signing of the agreement.

Response

In a statement, SPI reported that it has not been formally notified of the TCU’s decision. It also stated that the project was structured in accordance with the model approved in the concession process, “the draft agreement of which had been widely disclosed since the publication of the bidding notice on June 9, 2025, forming the basis for the auction held on September 5, 2025, and the signing of the agreement on January 28.”

SPI stated that this is an initiative developed jointly by the State Government and the Federal Government, within the legal and institutional procedures established. “Any statements are analyzed within the appropriate technical and legal framework, with institutional responsibility and a focus on the legal certainty of the agreement and the continuity of the project.”