The Privatization and Project Finance Adventure: Acquiring a Colombian Public Utility Company

Colombia is an exciting new arena for the international practitioner structuring project finance and privatization transactions. The sectors of the economy that are attractive targets for most multinationals (MNCs) entering Colombia are the energy, oil and gas, mining, water, and telecommunications sectors. In most cases, MNCs in these sectors consider investments in Colombia when the Colombian authorities announce a plan for the privatization or capitalization of state-run companies that have a monopoly on business. Often the MNC becomes aware of the privatization, concession, or capitalization project via an official announcement by the Colombian government calling for bids or an invitation informing the MNC that it is qualified for the particular project or a specific aspect of the project. When a client is interested in participating in the bid process, it will most certainly, unless it has participated in other bids in Colombia, approach counsel and its other advisors with assumptions of how the bid should be structured, from both a Colombian and U.S. angle. In these instances, the only option for counsel and other advisors is to listen and take note. The following key questions must be considered under this scenario: what type of restrictions exist under current privatization laws; what form of business association should be used; what is the tax treatment regarding business associations, dividend treatment, technical services and assistance contracts, and repatriation of profits; do foreign exchange regulations hinder the availability of using inter-company loans and foreign currency operations; how should the due diligence review be performed; and how should local counsel be chosen