Publications

Category: Tax

Applications for mandamus are widely used to litigate tax issues, and are found to be attractive for their swift processing and the absence of costs for loss of suit. On the other hand, there are a number of procedural issues that must be carefully assessed in order for applications to be effective, such as pre-established evidence, their own individual time limits, and the applicable rule of jurisdiction, which deserves specific comments.

Traditionally, mandamus is sought against the functional head of the authority deemed abusive, identified as the party responsible for the act contested. In federal tax matters, this authority is usually the office of the Federal Revenue Service of the taxpayer’s tax jurisdiction. This is safe conduct, aligned with the general rule of jurisdiction established in the Code of Civil Procedure and with the principle of the natural judge (article 5, III, of the Federal Constitution).

Often, there is concomitance between the location of the government authority and applicant, which facilitates application of the rule of jurisdiction. However, there are cases where the localities are different, or when there are even different parties involved subject to differing jurisdictions, which adds complexities in identifying the competent venue and in the conduct of proceeding.

The case law on the subject has matured, mainly under the purview of the First Section of the Supreme Court, which is abandoning the current that limited the jurisdiction to assess an application for mandamus to the location of the government authority.^[1]

According to the understanding that is developing in the High Court,^[2] the jurisdiction over applications for mandamus brought against an act committed by a federal public authority must follow the list of Article 109, § 2, of the Federal Constitution,^[3] which assigns to the applicants the power to choose among their domicile, the Federal District, or, further, the place of the act/fact that gives rise to the claim.^[4]

The change was driven by the judgment in RE No. 627.709/DF, handed down by the Supreme Court under the system of general repercussion (article 543-A, § 1, of the Code of Civil Procedure of 1973). This leading case discussed the application of Article 109, § 2, of the Federal Constitution  federal authorities. The doubt lay in the fact that the provision expressly dealt with "cases brought against the Federal Government", without any mention of the indirect public administration, of which the municipalities are part.

In that judgment prevailing position was that the objective of the constituent assembly in introducing the constitutional provision in question was "to facilitate access to the judiciary for parties when litigating against the Federal Government", which would have better conditions to litigate in a venue other than its head office, considering its organizational structure and the procedural advantages which it enjoys. Because it believes that these same premises apply to federal authorities, the Supreme Court acknowledged that they are also subject to Article 109, § 2, of the Federal Government.

While it is possible to consider the judgment of the leading case in question to have driven the renewal of the case law of the Supreme Court, as even previously the Supreme Court had already recognized the possibility for applicants to choose the venue of their domicile to file an application for mandamus.^[5]

In those decisions, the logic prevailed that the rule of jurisdiction would apply to any and all actions brought against the Federal Government, including mandamus actions. As the Constitution made no distinction regarding the nature of the actions brought against the Federal Government, it would suffice for it to be a defendant for the applicant to choose one of the jurisdictions provided for in Article 109, paragraph 2, of the Federal Government.

In this jurisprudential framework, the First Section of the Supreme Court has applied the rule of jurisdiction of Article 109, § 2, of the Federal Constitution to mandamus actions, recognizing the right conferred on applicants to opt for the jurisdiction of their domicile.

Among the judgments dealing with the subject, the judgment of CC No. 153,878/DF, which, when dealing with a topic with a focus on mandamus actions, clarifies that this provision " does not distinguish between the various kinds of actions and procedures provided for in the procedural legislation, which is why the fact that it is a mandamus action does not prevent the applicant from choosing, among the options defined by the Constitution, the most convenient venue for the satisfaction of their claim. The constitutional order, in this respect, aims to facilitate access to the judiciary for parties litigating against the Federal Government".

It is curious to note that, when applying the constitutional rule under analysis, these judgments deal with the possibility of filing in the claimant's home, failing to address the other scenarios also mentioned in the constitutional provision. The highlight here is the possibility of filing in the Federal District, as an alternative to the place of domicile.

Although this choice is also supported by the prevailing reasoning, the topic is not addressed by this perspective, which allows questions as to whether there is effective matching of all the constitutional options mentioned therein.

On the subject, the First Section of the Federal Court of Appeals for the 1st Circuit^[6] has already positioned itself in the same sense as the understanding established by the Superior Courts, reaffirming the option conferred on applicants to opt for the venue of their domicile when  the federal public authority is sued. However, as in the precedents of the Supreme Court, the issue has been mostly faced in the light of the applicant's domicile, without addressing the other scenarios provided for in Article 109, § 2, of the Federal Constitution (place of the act or fact that originated the claim, where the thing is located, or in the Federal District).

It is undeniable that this jurisprudential change represents a real advance in favor of access to justice and tends to evolve to clear the possibility for the claimant to choose, strategically, the place where he intends to file the action, whether in his home or even in the Federal District, to the detriment of the traditional position that suit should be brought in the place where the functional office of the authority whose act is being contested is located.

^[1] AgRg no AREsp 721.540/DF, AgRg no MS 21.337/DF.

^[2] CC 169.239/DF, AgInt no CC 163.905/DF, CC 166.116/RJ, AgInt no CC 153.878/DF, AgInt no CC 154.470/DF, AgInt no CC 148.082/DF, AgInt no CC 153.724/DF, AgInt no CC No. 153.138/DF, AgInt no CC No. 149.881/DF, AgRg no CC No. 167.534/DF, CC No. 163.820/DF.

^[3] Art. 109. Federal judges are responsible for hearing and deciding: (...)

• 2 - The cases brought against the Federal Government may be apart from the judicial section in which the plaintiff is domiciled, where the act or fact that gave rise to the claim or where the thing is situated, or even in the Federal District. (...)

^[4] The current Code of Civil Procedure has a similar guideline in the sole paragraph of its article 51.

^[5]AgRg at RE 509.442/PE, AgRg no RE 599.188-AgR/PR, RE 171,881/RS.

^[6] cc 1037291-51.2020.4.01.0000cc 1027286-67.2020.4.01.0000cc 1030723-19.2020.4.01.0000.

Category: Labor and employment

The new Procurement Law (Law No. 14,133/21), enacted on April 1, aims to regulate the procurement processes and contracts of the Public Administration. The law, in force since its signing, repealed some provisions of the current legislation on the subject (Law No. 8,666/93) and will replace it completely in two years.

Among the various changes that the law regulates, some bring about impacts for labor relations. Similar to the prior legislation, the new law establishes that the responsibility for labor charges is exclusively that of the contractor and cannot be transferred directly to the Administration in case of default. However, by filling a gap that existed before, the new law regulates the scenarios in which the Public Administration may be able to respond secondarily for default on labor obligations by the service provider.^[1]

Thus, the new legislation expressly establishes the possibility of secondary liability of the Public Administration for labor charges arising from the provision of continuous services with a regime of exclusive dedication of labor, provided that proven failure to monitor the fulfillment of the obligations arising under the contract.

This understanding was already adopted by the Labor Judiciary, as established by subsections IV and V of Precedent 331 and by the Supreme Court (STF) in a theory with recognized general repercussion (Topic 246), but still did not find an express legal provision.

In addition, the legislator added to the normative text some measures that the Administration may take to ensure compliance with labor obligations by service providers and, consequently, avoid possible liability for labor charges arising from the contract.

In this sense, when hiring companies providing for the execution of continuous services, the Administration may require, through a call notice or contract, various preventive measures for the fulfillment of labor obligations, such as:

• requiring security, bank guarantee, or performance bond, with coverage for defaulted severance payments;
• conditioning the payment provided for in the contract on proof of discharge of labor payments by the contractor;
• making deposits of the amounts arising from a contract in an unattachable escrow account;
• paying severance funds directly to the workers, with subsequent deduction of the amounts related to the contract; and
• establishing that the amounts intended for vacations, thirteenth salary, legal absences, and severance pay for employees of contractors who participate in the performance of the services contracted, will only be paid by the Administration to the contractor when the triggering event occurs.

The measures implemented by the new legislation indicate that the contracts entered into by the Public Administration for the provision of continuous services will be safer and allow preventive control of procurements, imposing on the private sector stricter conditions for fulfillment of labor burdens.

^[1] "Article 121. Only the contractor shall be responsible for labor, social security, tax, and commercial charges resulting from the performance of the contract.

• 1 - Default by the contractor in relation to labor, tax, and commercial charges shall not transfer to the Administration the responsibility for payment thereof and may not burden the object of the contract or restrict the regularization and use of works and buildings, including before the registration of real estate, subject to the scenarios provided for in paragraph 2 of this article.
• 2 - Exclusively in the hiring of continuous services in an exclusive arrangement of provision of labor, the Administration shall be jointly and severally liable for social security charges and secondarily for labor charges in the event of proven failure to monitor the fulfillment of the obligations of the contractor."

Category: White-Collar Crime

Law No. 14,133/21, also called the New Public Bids and Administrative Contracts Act (NPBAC), brings several legislative changes to replace the provisions of Law No. 8,666/93. In the criminal sphere, the bidding crimes, previously provided for in Articles 89 to 99 of Law No. 8,666/93, were fully transferred to the Penal Code, through the inclusion of Articles 337-E to 337-O in Chapter II-B: "Crimes against public bids and administrative contracts".

In addition to the relocation of crimes from extravagant legislation to the Penal Code, the description of typical conduct has undergone modifications that can generate significant changes. Some of them directly impact the description of criminal conduct, such as the of the crime of defrauding a public bid or contract, which now includes the following conducts as criminal:

• the delivery of goods or services with quality or in quantities other than those provided for in the notice or in the contractual instruments
• the supply of goods unusable for consumption or with expired shelf life; and
• changing the service provided.

That is, the new law included in the list of criminal conducts some that had long been processed, although they did not expressly appear as bidding crimes.

On the other hand, the crime of disreputable contracting, which provided for equal punishment for the admission, participation and hiring of a disreputable company or supplier through a public bidding process, has now segregated the conducts by injury. Thus, for mere admission or participation in bidding, the penalty will be more lenient than in the case of hiring, which seems more reasonable in the light of the principle of culpability in criminal law. The old wording placed in the same position agents who committed conducts with different harm degrees and who, therefore, deserve a different penalty that is proportional to the impact of their conducts.

Other changes modified solely the penalty imposed and not the description of the criminal conducts, however, these subtle changes can generate important procedural consequences that affect the statute of limitations, the rite in which criminal proceedings will be processed, the possibility of negotiating prosecutorial agreements and replacing the custodial sentence with restrictive rights.

Examples of these procedural impacts are the crimes of sponsoring improper hiring and disturbing of a public bidding process, which had their maximum penalty increased from two to three years. The increase ends up excluding them from the list of misdemeanors, making impossible, consequently, the benefits provided for in Law No. 9,099/95, such as non-prosecution agreements (NPAs) and deferred-prosecution agreements (DPAs).

Another increase in penalty that deserves attention is the crime of frustrating the competitiveness of a public bid, whose sentence became imprisonment from four to eight years – before it was detention of two to four years – which, in addition to raising the statute of limitations from eight to twelve years, also impacts the possibility of conditional suspension of the sentence, the replacement of custodial sentence by restrictive rights and the possibility of an initial open regime for the execution of the sentence.

The new law also provided for a new crime in Article 337-O consistent in a designer omitting relevant data or information, with a corresponding penalty of imprisonment from six months to three years.  This crime is an attempt to also punish those in charge of defining specific conditions for the submission of proposals for public bids and contracts such as surveys, topography, environmental conditions, demand studies, among others. These are issues that, by their nature, directly influence the price and/or conditions of supply of the product or the provision of the services.

Finally, Article 337-P establishes new criteria to calculate the minimum fine in case of crimes against public bidding procedure and contracts. The old maximum of 5% of the value of the contract was waived in the imposition of penalty, provided that it is calculated based on the criteria of the Penal Code.

Law No. 8,666/93 provided that the amount raised by the criminal fine should be allocated to the public agency harmed by criminal conduct. The new law withdrew this provision, probably in an attempt to fix the punitive nature of the fine opposed to the indemnification aspect, which should be discussed in civil action.

The criminal amendments came into force on the date of publication of the law, while the provisions relating to the bidding process and the conclusion of administrative contracts will enter into force only in April 2023.

The effective implementation of criminal changes should still be the subject of deep jurisprudential discussions. The courts will face the difficult task of reconciling the criteria of criminal law enforcement in time with the dates of conclusion and expiration of public contracts in progress, in addition to establishing the parameters of compatibilization of the old public procurement guidelines with the new criminal provisions for the next two years.

Below is a comparative table of the criminal provisions.

Category: Environmental

Since the 1990s, the Environmental Company of the State of São Paulo (Cetesb) has been working to define the management procedures of contaminated areas. In 1999 and 2001, the environmental agency released the first and second versions, respectively, of the Contaminated Areas Management Manual.

The first manual was the result of the Technical Cooperation Project between Cetesb and GTZ, a German government agency, and had as its primary objective to define the methodology for identifying, managing, and rehabilitating contaminated areas.

The guidelines provided for in the manual drafted by Cetesb were not limited to the state of São Paulo. They influenced the enactment of environmental legislation on the subject, contributing to the creation of a robust legal framework throughout the country.

In the State of São Paulo, since 2009, State Law No. 13,577/09 has been in force, which is currently regulated by State Decree No. 59,263/13 and provides for guidelines and procedures for the protection of soil quality and the management of contaminated areas. The legal text is directly linked to the technical guidelines established by Cetesb in its manual.

Recently, in 2017, Cetesb issued Board Decision No. 038/2017/C, which establishes the current technical requirements on:

• the approval of the procedure for the protection of soil and groundwater quality;
• the procedure for the management of contaminated areas; and
• guidelines for the management of contaminated areas to be followed during environmental licensing proceedings.

To keep up with the progress of the legislation, as well as the technology involved in the subject, Cetesb updated the manual, having released its third version on April 8, 2021. An initiative of Cetesb's Environmental Board for the Management of Contaminated Areas, the manual was released in digital format and is available on the environmental agency’s website.

The new manual is the result of a joint effort by several stakeholders, such as representatives of the industrial sector, financial institutions, universities, and technical consultants that make up the Chamber. Multidisciplinarity contributes to the drafting of a robust document encompassing subjects related to the performance of the different agents involved in the management of contaminated areas.

The manual also refers to European and North American practices to guide procedures for investigating contaminated areas. For this reason, it is expected that the document will continue to be used as a reference in other states of Brazil, as was already the case with previous versions.

In the third edition, Cetesb’s foresees to publish 83 sections, distributed in 16 chapters. In April, some chapters were already released, which deal, among other aspects, with the history of management of contaminated areas in the state of São Paulo, the applicable methodology, the annotation of existence of contaminated areas in the property’s registry, the procedure for managing critical contaminated areas, the identification of areas with potential for contamination, and the survey of information for the preliminary evaluation, such as existing information and fieldwork. The remaining chapters will be published throughout the year, and their full release is expected to be completed by October 2021.

In addition to updating the information contained in the other versions, the new chapters will address current and relevant topics, such as (i) investigations and risk assessment of contaminated areas; (ii) the drafting and implementation of the intervention plan; (iii) monitoring for closure; (iv) the issuance of the Rehabilitation Term for Declared Use; and (v) instruments, including guiding values, the State Fund for the Prevention and Remediation of Contaminated Areas (Feprac) and environmental education.

At the launch event of the manual, Cetesb highlighted that the management procedures of contaminated areas should consider as reference the Board Decision No. 038/2017/C and the manual. In case of absence of information, the technical standards of the Brazilian Association of Technical Standards (ABNT NBR) may be used, as long as it is applied according to the board's decision and the manual. If the board’s decision or the manual do not provide specific guidance, the Environmental Board for the Management of Contaminated Areas will decide the applicable procedures.

The disclosure of the updated manual evidence Cetesb's commitment to the subject, playing an essential role in standardizing the procedure for managing contaminated areas not only in the state of São Paulo, but throughout Brazil.

Category: Tax

Despite the widespread crisis caused by the pandemic, the trajectory of accelerated and steady growth in agribusiness ensured that the fall in the Brazilian GDP was not so tragic. According to data released by the Confederation of Agriculture and Livestock of Brazil (CNA) and the Center for Advanced Studies in Applied Economics (Cepea), the Gross Domestic Product (GDP) of agribusiness in 2020 grew a record 24.31% compared to 2019 figures.^[1] An extraordinary advance, especially when considering the major obstacles in the taxation of the sector, such as reduction of tax benefits and the rules on PIS and COFINS credits. In the list of fiscal obstacles that impact on agribusiness one finds the Rural Territorial Tax (ITR), which is rarely addressed by legal scholarship on tax law and on which it is necessary to make some comments.

Despite its national scope, the ITR goes beyond the most relevant tax debates, such as discussions on  tax reform proposals, quite possibly due to their reduced impact on federal revenue. According to the 2019 Annual Inspection Report, published by the Internal Revenue Service, the ITR accounted for less than 1% of all assessments from audits.

However, although it is not a significant tax in terms of revenue, the ITR is a tax of unquestionable relevance for the agribusiness sector, directly affecting the tax burden players in this market.

According to the original wording of Article 153 of the Federal Constitution, the ITR is a tax of the Federal Government. But since 2003, with the enactment of Constitutional Amendment No. 42, municipalities may choose to oversee and collect the federal tax by entering into an agreement.

For municipalities, the advantage of this division of powers is that proceeds from the collection of the tax on properties established in their territory will be 100% directed to the municipality, expanding local revenue. For the Federal Government, which would need to pass part of the collection on to the municipalities (article 158, II, of the Federal Constitution of 1988), the benefit is to ensure greater effectiveness in the supervision of the tax.

In a country with continental dimensions, delegating the activity of assessment and collection to the municipalities is a reasonable measure and, in a way, even desirable. However, there are issues arising from the dispersal of collection activities that merit debate and that require further reflection.

The first question is related to preservation of the uniformity of the general premises of the tax. Although the competence to legislate on assessment criteria remains exclusive to the Federal Government, municipalities end up interfering – in a questionable manner – in the composition of the tax calculation basis when they go through the assessment and collection activity.

As we know, the taxable event of the ITR is the ownership, possession, or useful domain of property located outside the urban area of the municipality, based on calculation of the assessment value of the unbuilt land (VTN).

The VTN, in turn, per the definition of Normative Instruction RFB No. 1,877/19, is the market price of the property, which is established considering the following criteria: (i) location of the property, (ii) agricultural aptitude, and (iii) size of the property.

By signing an agreement with the Federal Government to oversee the ITR, in exchange for the benefit of keeping the total amount of the tax collected, municipalities begin to have the task of periodically indicating the value of unbuilt land per hectare (VTN/ha) that will serve as a reference to update the Land Price System (SIPT) of the Internal Revenue Service. The SIPT is a database fed by the municipality that allows the taxpayer to consult the reference agenda of the VTN of the locality and is used in any levies to collect the tax.

As a reflection of this "municipalization of the tax", there is, in practice, a diversification of the criteria for measuring the value of the land, which, in turn, will directly affect the value of the ITR.

For example, the neighboring municipalities of Sarzedo and Ibirité, in Minas Gerais, whose VTNs are, respectively, R$ 375,659.78 and R$ 74,134.90 per hectare for cropland. In addition to the absurd discrepancy in value, the comparison with the NV in the municipality of Sorriso, Mato Grosso, makes more evident the lack of criteria in measuring the NMV. A soybean production center in Brazil and the Brazilian municipality with the highest value of agricultural production, Sorriso established a VTN of R$ 4,763.09 per hectare for cropland.

Although the SIPT was created to provide transparency and certainty regarding the VTNs calculated, in practice, a lot of table data does not meet the criteria required by the legislation.

Moreover, the transfer of collection capacity to municipalities increases the risk of inversion of the intent to merely raise the rural tax, impairing its typically extra-fiscal function. Article 153, VI, of the Federal Constitution of 1988 (current wording), regulated by Law No. 9,393/96, gives the tax a major extra-fiscal function, which must be guarded so that it always has a positive impact on the productive use of land.

With regard to administrative discussions on collection of the tax, because it is a tax within the competence of the Federal Government, cases involving the ITR are analyzed by the Administrative Tax Appeals Board (Carf), more specifically, by the panels of the 2nd Section.

In the Carf, the ITR is a tax that has seldom appeared in recent litigation – the use of the term ITR in the field "search decisions" on the Carf's website returns, for the most part, cases with taxable events prior to 2010. But precisely because of the municipalization and the increase in supervision, the ITR should gain more space on the agenda for discussions.

Last year, the 2nd Panel of the Upper Chamber of Tax Appeals (CSRF) reviewed various cases^[2] discussing the need to present the Environmental Declaratory Act (ADA) to exclude the Permanent Preservation Area (APP) from the ITR calculation basis.

In such cases, the tax requirement was based on Article 17-O, head paragraph and paragraph 1 of Law No. 6,938/00, a rule that is still in force, which requires the ADA to reduce the rural tax. However, this obligation to submit the ADA fell with the case law established by the Superior Court of Appeals (STJ) – see REsp No. 587.429/AL – and the opinion issued by the Attorney General of the National Treasury PGFN/CRJ 1329/2016. Although neither the Decision by the STJ nor the opinion of the PGFN are formally binding on the Carf, the 2nd Panel of the CSRF, in a close vote, gave cause for gains for the taxpayer, deciding in favor of the need to preserve the coherence of the jurisprudential interpretation of the legal system and dispense with the requirement of the ADA in order to recognize the non-application of ITR in an environmental preservation area (provided that the evidence of the area is validated by means of a technical report prepared under the legislation).

The decision was also a breakthrough, but the other controversies regarding the ITR remain. It is expected that Carf, as the body responsible for reviewing tax assessments, will continue to give the most correct interpretation of the current normative provisions, maintaining the constitutional and legal contours of the tax, without restrictions or invasions.

In another year of the pandemic, a  correct analysis of the ITR measurement criteria is necessary for agribusiness to continue advancing in Brazil.

^[1] https://www.cnabrasil.org.br/boletins/pib-do-agronegocio-alcanca-participacao-de-26-6-no-pib-brasileiro-em-2020

^[2] Among them, Ac. 9202-009.243 and 9202-009.343

Category: Infrastructure and energy

Mauro Bardawil Penteado, Pedro Henrique Jardim, André Camargo Galvão, Rafaela Tavares Ramos and Caio Colognesi.

Decree No. 10,672/21, published in the Official Gazette (DOU) on April 13, regulated Law No. 12,815/13 (Ports Law), creating a rite that allows the exemption from bidding for port lease, in addition to establishing procedures and conditions for the temporary use of areas and facilities located within the polygonal of the organized port. The following are the main changes introduced by the decree:

Exemption from bidding for the absence of multiple interested parties. The decree allows the exemption from bidding when it is proven the existence of a single interested in the exploration of port facility located within the organized port. The port authority shall make a public call within 30 days to identify the existence of other interested parties in the exploration of the area and the port facility, the extract of which will be published in the DOU, containing minimum information stipulated by the decree. Any potential interested party must formally express its interest through a document filed with the competent port authority.

The expression of interest presupposes the commitment of the interested party (who must be a legal entity) to (a) conclude the lease when he is the sole participant in the public call or (b) submit a valid tender in a bidding event, if there is more than one interested party.

The commitment will be signed by proving the provision of a proposal guarantee, as a way to avoid the expression of interest for delaying purposes.

Exemption from bidding for temporary use contracts. The decree allows the port administration to enter into a temporary contract for the use of port areas and facilities located within the polygon of the port organized with an interested party in the movement of cargo with unconsolidated market, that is, cargoes not regularly moved in the port in the last five years. Thus, the bidding process is exempted.

The temporary use of port areas and facilities will be structured through a Temporary Contract for the Use of Port Areas and Facilities, which will be signed between the interested party and the competent port administration. This contract must comply with the following specifications, among others: an non-extendable period of up to 48 months and use of the object area compatible with the development and zoning plan approved by the granting authority.

If there is more than one interested and no physical availability to allocate all interested parties simultaneously, the port administration will make simplified selection process to choose the project that best meets the public interest and the organized port.

Change in the rules of the port bidding procedure. The decree amends the minimum deadline for the submission of proposals, which was previously set to 100 days from the date of publication of the tender notice. Now, this period becomes the one stipulated by the notice, observing the legal minimum period. The decree also granted the National Waterway Transport Agency (Antaq) the competence to, within 120 days of the date of publication of the decree, fix the limit value of contracts in which it is not necessary to hold a public hearing for the bidding event. Thus, it will not be necessary to observe the fixed amount tied to Law No. 8,666/93 (Bidding Law), stipulated at R$ 330 million.

Simplified feasibility study. In addition to the hypotheses of exemption from bidding, Decree No. 8,033/13 established that previous studies of technical, economic and environmental feasibility of the purpose of the lease or concession could be carried out in a simplified manner, if they met the criteria set out in the regulation, one of which was the limit value of R$ 330 million. With the publication of Decree No. 10,672/21, this value limit criteria was withdrawn and maintained only the contractual term of up to 10 years.

Changes in the initial deadline for port concessions. The decree removed the limitation of time limit for the first contractual period of a port concession, previously determined in 35 years, but maintained the maximum limit of 70 years.