The MME (Ministry of Mines and Energy) officially entered the debate on late thermal plants that had been contracted through PCS (Simplified Competitive Procedure). In a letter sent to Aneel (Electric Energy Agency), the ministry defends the cancellation of contracts for units that did not start operating within the stipulated period.
The MME also contests the use of the Mário Covas unit in place of four Âmbar Energia plants that were winners in the same event and delayed.
The letter is signed by the minister of the MME, Adolfo Sachsida, and was sent to the new director general of the agency, Sandoval Feitosa. On the board of the energy sector, the ministry makes the rules of the game, and it is up to the agency to apply and police their compliance. In the case in question, it was understood that Aneel disregarded the folder’s guidelines.
The Agency is still evaluating the fate of the thermal plants that did not arrive on schedule. The controllers presented justifications, using an instrument called liability exclusion.
Aneel’s board had accepted Âmbar Energia’s request and authorized, in a meeting held on July 12, the use of the Mario Covas thermal plant in place of four of its PCS plants.
The MME letter, with 40 pages, provides technical and legal assessments about the PCS. In several passages, it presents considerations against Ámbar’s claim. The note concludes that the agency’s decision in favor of the company not only advances the ministry’s competence but is also based on premises that contravene the auction rules.
The document also includes in an annex an opinion of the legal consultancy of the folder, reinforcing that there was “clear legal inadequacy of the decision” of Aneel. “The decision affronts not only the guidelines of the Ministry of Mines and Energy, but the legal framework”, says the text.
Ámbar is the energy arm of J&F — a group that also controls JBS, a global meat company.
Sought by the report, the company did not respond until the publication of this text.
The PCS foresaw the supply of new thermal plants, which should be built to operate as insurance against blackouts. The auction was held in October 2021 and the units were expected to start operating on May 1. In case of delay, they would pay a fine and would have to start operations by July 31. Otherwise, the contracts would be terminated as of August 1st.
The 17 plants, three for clean energy and 14 for gas, would cost Brazilian consumers BRL 39 billion in the nearly three and a half years they would have to operate. However, completion of the projects was delayed. On July 31, the deadline to be activated, 11 had not come into operation, including in this group the four from Âmbar, according to a survey by the CCEE (Chamber of Electric Energy Trading).
Âmbar spent the first half insisting with Aneel that the four PCS plants, which are equivalent to practically half of the total cost (almost R$ 18 billion), be replaced by the Cuiabá thermal plant.
The agency’s technical area gave two opinions against the request and sector entities presented justifications to prevent the change. But the rapporteur of Âmbar’s case at the agency, former director Efrain Pereira da Cruz, defended the company — a position endorsed by two more directors of the agency.
The ministry disputes the rapporteur’s argument that exchanging four new plants for an old one “served the public interest”. According to the ministry, the public interest lies in fulfilling contracts in full: prices, deadlines, characteristics of the contracted object, and even revocation of grants, if the conditions for doing so occur.
“In addition, it is also necessary to take into account the legal certainty of a decision that ignores the legal bases of a contract”, says the ministry.
“I reinforce that the public interest is in complying with rules and contracts, preserving the credibility of the Brazilian electricity sector and attracting investments”, says the document signed by Sachsida.
Aneel confirmed to the Sheet receipt of the letter from the MME. In a note, he highlighted that the cases are still under analysis. “Appeals were lodged against the decision, and they are still being evaluated by the Agency, so the process has not yet been concluded”, says the text.
Aneel also reinforced that the decision in favor of Âmbar includes an effectiveness clause. To make the switch and use the Cuiabá thermal plant, the projects had to be completed by July 30, which the company did not do.
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