On March the 2nd, 2021, the Ministry of Finance ("MF") issued Decree 223 of 2021 (“Decree 223”), that introduces Part 23 to the second Book of Decree 1068 of 2015 and regulates the Fund of Alternative Sources of Payment for Infrastructure Projects - Fondo de Fuentes Alternativas de Pago para el Desarrollo de Infraestructura (“FIP”), created by Article 149 of Law 2010 of 2019.
Particularly, Decree 223 establishes: (i) the resources that may enter the FIP, other than those already included in Law article 149 of Law 2010 of 2019; (ii) the way in which the costs and values for the administration of the FIP shall be paid; and (iii) the rules for the management and operation of the fund, as well as other relevant regulation so that the FIP can accomplish the purposes for which it was created.
Hereunder, we provide a brief summary of the most important issues introduced by Decree 223.
Nature and management of the FIP:
The FIP is a trust managed by the Financiera Nacional de Desarrollo (“FDN”) and regulated by Article 149 of Law 2010 of 2019, Decree 223 and other applicable regulation, the trust agreement itself, and its internal rules.
The FIP’s resources are separate and independent from those of the Nation and of its manager, and the costs of its management and operation should be paid from its own resources.
The FDN as the fund’s manager is in charge of its representation and of adopting all relevant decisions that are not assigned directly to the fund’s board of directors. The manager is also the legal representative of the trust and must ensure its appropriate legal defense in any administrative or judicial process against it, to ensure the protection of all of its assets.
Decree 223 mentions a non-exhaustive list of resources that can be part of the fund. Some of them were already mentioned by Article 149 of Law 2010 of 2019, and others are new, introduced by Decree 223.
The most relevant ones already established by Law 2010 of 2019 are: (i) resources from collection of the surplus tax; (ii) financial returns from the fund’s investments; and (iii) resources obtained by the fund from Public Credit Operations (“PCO”).
In relation to new resources introduced by Decree 223, we highlight the following: (iv) resources from tolls, charges to users or commercial exploitation of infrastructure projects developed under concession contracts, that are freely available and that are transferred to the fund; (v) economic rights related to concession contracts or public-private partnerships– PPP that public entities have allocated for the development of infrastructure projects and that are transferred to the fund; and (vi) resources from territorial entities allocated for the development of infrastructure in their territories, whose economic rights were transferred to the fund; among others.
Separation and segregation of the fund resources
The FIP’s manager (currently the FDN) can create the subaccounts needed to ensure that the resources transferred to the fund by a specific sector or territorial entity are used as a source of payment for the development of infrastructure projects from these same sector or entities. This same faculty exists in relation to PCO, internal or foreign financing or treasury operations of resources integrated to the FIP as a source of payment for the development of projects of a particular sector or territorial entity.
The FIP’s manager is also authorized to segregate the fund’s resources so that specific resources are destined to attend debt service of the financing operations related thereto and mentioned above. Therefore, it is permitted to constitute other independent trusts or other similar mechanisms authorized by the law, whose cash flows must be exclusively intended to pay the aforementioned obligations.
Fund’s internal rules
The fund will have its own set of internal rules, which must be approved by the board of directors. These rules must contain the way in which all operational, administrative, and logistic aspects of the fund shall be managed, including, among others, the general characteristics of PCO and treasury operations of the fund.
Decree 223 also establishes that the manager shall apply its own contracting regime to the acts and contracts entered into by the fund, for the execution of its purpose and activities, except in those operations regarding PCOs. Those operations shall be managed according to the norms in Decree 1068 of 2015.
The FIP can use its resources in the following authorized operations and following the conditions and characteristics that are included in its internal rules and the trust agreement: (i) serve as a source of payment for the development of infrastructure projects; (ii) perform the internal or external financing or treasury operations required to manage the resources of the fund; (iii) repurchase economic rights from concessions or PPP to finance infrastructure projects; (iv) cover the costs of structuring of PCO for internal or external financing for infrastructure projects or treasury operations; (v) transfer or assign economic rights to other vehicles according to the financing scheme to be implemented in each infrastructure project.
The FIP may carry out PCO, internal or external, and treasury operations in its own behalf. To perform such operations, the fund must follow the requirements set forth in Part 2, Title 1, Chapter 2 of Decree 1068 of 2015 (Regulatory Decree for the Finance Sector) for PCO carried out by decentralized entities of the national order. These operations will not be guaranteed by the Nation.
Budgeting and transfer of resources
Public entities benefiting from FIP resources shall carry out the budgetary procedures required to receive them prior to their transfer.
In any case, and provided that these procedures are completed, public entities can order the fund to transfer the resources directly to the infrastructure project.
Transfer of rights
Public entities that own resources that are going to be part of the fund must transfer their economic rights. In order to do so, they must enter into an agreement with the FIP’s manager or issue a resolution allowing the transfer. Either way, the document must contain the minimum requirements and timing of the transfer to the fund, as well as the rights of the public entities that transferred their resources.
The recently regulated FIP is a relevant payment alternative for the financing and development of infrastructure projects in Colombia. This is very important having in mind that a huge amount or resources are going to be required to develop the 5G projects, a key program that is important for Colombia’s multimodal transportation and that is advancing at a good pace.