Ghana: PDS Hints Of Legal Action Against Gov’t For Terminating Concession Agreement

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The Power Distribution Services (PDS) Ghana Limited has hinted of its plans to use all the necessary legal steps to seek redress following the Akufo-Addo’s administration’s decision to terminate the concession agreement signed with the Electricity Company of Ghana (ECG).

The Akufo-Addo-administration terminated the concession agreement the power distributor, PDS, signed with ECG on March 1, 2019, over claims of material and fundamental breaches in the agreement by PDS.

However, PDS says it disagrees with the government especially when the agreement clearly stated steps that should be taken in an event of the government declaring its intention to cancel the contract.

In a 40-point statement PDS issued to its stakeholders and intercepted by energynewsafrica.com, it said: “PDS does not accept the basis on which ECG and GoG assert their right to terminate the Transaction which, therefore, triggers a dispute as between PDS and ECG on one hand and PDS and Ghana on the other hand.”

According to PDS, “All the Transaction Agreements, i.e. the LAA, BSA and GSA have made provision for dispute resolution. The process in all cases starts from an attempt at a negotiated settlement and concludes with arbitration with the final award by any arbitration tribunal being binding on the parties.

“The LAA has elaborate provisions on post termination actions that the parties are required to take. A transition period of 180 days is required within which the parties are to retransfer in the same manner as was done prior to 1st March, 2019. Further within that Transition Period per the terms of the LAA, PDS is to remain responsible for the operation and management of the utility covering the Southern Distribution Zone and assures the power consuming public of its responsible behaviour.

“PDS remains a responsible Contracting Party with or without the supervision of the MCC. As such, PDS is committed to seeing through its obligations under the Transaction Agreements i.e.: the LAA, BSA and GSA per their terms and within the framework of Ghanaian law which is the governing law of the Transaction.

“PDS is carefully weighing its options and continues to reserve all its rights under the Transaction Agreements and Applicable Laws to pursue all available causes of action,” the statement said.

PRESS STATEMENT BY POWER DISTRIBUTION SERVICES GHANA LTD (PDS) ON TERMINATION OF CONCESSION BY ECG AND GOVERNMENT OF GHANA

On 31st July, 2019, the Government of Ghana through the Ministry of Information issued a statement announcing the suspension of the Concession (Transaction Agreements) between the Electricity Company of Ghana (ECG) and PDS, and Government of Ghana (Ghana) and PDS.

That single step set in motion a series of events that have culminated in the notification of termination by ECG of the Lease and Assignment Agreement (LAA) and Bulk Supply Agreement (BSA) between it and PDS on 23rd October, 2019; and the notification of termination by Ghana of the Government Support Agreement (GSA) between it and PDS on 28th October 2019. These events include a purported cancellation of the Electricity Distribution and Electricity Sale Licences of PDS by the Energy Commission (EC), both of which occurred on 23rd October, 2019 supposedly on the back of the notice of termination of ECG.

PDS respects the rights of Ghana and ECG to terminate the Transaction Agreements but notes that such termination even if permissible must be done in a manner that is contemplated within the framework of the Transaction Agreements and appropriate under Ghanaian Law.

PDS notes that some of the information available to the general public does not accurately reflect the events leading up to the suspension of the Transaction Agreements, and matters that arose thereafter which culminated in the events of 23rd October, 2019; the issuance of the notice of termination by ECG, the actions of the Energy Commission; and the subsequent issuance of a notice of termination by Ghana through the Ministry of Finance.

In order to put things in the appropriate perspective for the Ghanaian public and all other relevant stakeholders, we have released as part of this statement a document titled “Frequently Asked Questions on the ECG-PSP with PDS as Concessionaire”. We hope the information being shared will enable persons desirous of understanding the transaction and its fallouts appreciate the events that have occurred. Copies of all the Transaction Agreements will be made available on various platforms.

PDS continues to reserve all its rights under the Transaction Agreements and will take the necessary steps to ensure that the sanctity of those Agreements is respected.

PDS continues to reassure all Ghanaians that it remains a conscientious and responsible contracting party and will support any process that ensures consumers within the Southern Distribution Zone receive uninterrupted power supply.

Frequently Asked Questions on the ECG-PSP with PDS as Concessionaire

  1. What is the ECG-PSP programme and when did it start.

The Electricity Company of Ghana (ECG) Private Sector Participation (PSP) programme is one of the key components of the Millennium Challenge Corporation’s (MCC) Compact II. Compact II is part of the Power Compact, signed by the Government of Ghana and the United States Government represented by the MCC in August 2014. The Compact aims to “reduce poverty through private sector-led economic growth”. One of the six (6) key programmes of the Compact is the “ECG Financial and Operational Turnaround” (EFOT). This involves, among others, private sector participation through the Concession to operate, manage and invest in the electricity distribution business of ECG (Concession). The Concession took effect on July 3, 2018 following an international tender administered by the Millennium Development Authority (MiDA) to select a qualified Concessionaire. The Concession agreements were ratified by the Parliament of Ghana on July 24, 2018. From the Effective Date of the Concession until February 28, 2019 (Transition Period), the Government of Ghana (GoG), ECG, and the Concessionaire diligently worked together to complete the Conditions Precedent for the transfer of the operation and management of the electricity distribution business of ECG to the Concessionaire. Following the agreement between the Parties that all Conditions Precedent were satisfied or converted into conditions to be fulfilled after the Transfer (Conditions Subsequent), the Concessionaire commenced its distribution operations on March 1, 2019.

  1. What is Power Distribution Services Ghana (PDS) to do as Concessionaire

PDS is the sole entity responsible for the operation, management and investment in the distribution utility covering the Southern Distribution Zone (SDZ) hitherto serviced by ECG. PDS, as a licensed distribution utility, is regulated by the Public Utilities Regulatory Commission (PURC) and the Energy Commission (EC). Under the Concession, PDS is obligated to: (a) invest $580 million, (b) reduce Aggregate Technical and Commercial loss by 4.8 percentage points; and (c) reduce Collection loss by 11.8 percentage points from March 1, 2019 to February 28, 2024.

  1. Was ECG supposed to supervise PDS as Concessionaire

Under the Concession agreement ECG and PDS have distinct roles. ECG remains the asset owner of the distribution network and bulk energy supplier to PDS. PDS is the primary operator, manager, and investor, of the distribution network serving the SDZ. Regulatory supervision of both PDS and ECG is under the PURC and EC. ECG and PDS relationship is governed by the Transaction Agreements. The Transaction Agreements comprise of the Lease and Assignment Agreement (LAA), the Bulk Supply Agreement (BSA) and the Government Support Agreement (GSA)

  1. How many companies participated in the bidding process

In accordance with international best practice, the process opened with the publication of a Request for Expression of Interest (EoI) on September 30, 2015. Eighty-three (83) local and foreign entities expressed interest to participate in the process.

In April 2016, MiDA issued the Request for Qualification (RfQ) to the entities which expressed interest to participate. This required the interested entities to submit corporate documents and credentials to demonstrate their compliance to the qualifications set by MiDA. The qualification criteria comprised the legal, financial, technical, and operational capabilities deemed essential to operate and manage a distribution utility of the size and complexity of ECG. 3

Following the issuance of the RfQ, Eleven (11) entities submitted their Application for Prequalification. In keeping with MiDA’s commitment to transparency, the MiDA Board constituted a seven (7)-member Panel of experts to evaluate the Applications. The Panel comprised representatives from ECG, Ministry of Finance, Energy Commission, Ministry of Petroleum, Ministry of Power (the last two Ministries eventually being merged into one Ministry for Energy), and two representatives from the Office of the Attorney-General and Ministry of Justice. At the end of the evaluation exercise, the Panel shortlisted six (6) out of the eleven (11) Applicants.

The six (6) Shortlisted Applicants were:

  1. Manila Electric Company (Meralco) from the Philippines,
  2. Consortium of the CH Group/ EDF SA/LMI Holdings/Veolia SA,
  3. BXC Company Ghana Ltd/Xiaocheng Technology Stock Company Limited/Shaanxi Regional Electric Power Group Company Limited,
  4. Engie Energie Services, SA
  5. Enel S.P.A and
  6. Tata Power Company Limited/CDC Group Plc.

The Shortlisted Applicants were subsequently issued the Request for Proposal (RfP) document on August 30, 2016. The RfP outlined the requirements of the tender, instructions to the bidders, evaluation, and selection process, and drafts of the Transaction Agreements, PURC Rate Setting Guidelines, Distribution License, and Retail Sale License. In November 2017, after extensive discussions with GoG stakeholders and two Bidders’ Conferences, MiDA issued an Amended and Restated RfP. The amendments included an increase in the minimum Ghanaian equity participation from 20% to 51% and reduction of the term of the Concession from 25 years to 20 years.

By the deadline for submission of Proposals on March 26, 2018, MiDA received proposals from the Meralco-led Consortium and BXC. On the same day, the CH Group Consortium including EDF and Veolia submitted a letter withdrawing from the bidding process. Earlier withdrawals were received from Enel S.P.A on 7th October 2016, Engie Energie Services on 28th September 2017, and Tata Company/CDC Group Consortium on 12th February 2018.

By the end of the technical and financial evaluation, the Meralco-led consortium emerged as the Preferred Bidder.

Consequently, the Meralco-led Consortium (organised as PDS), remains qualified and in full compliance with the selection criteria.

  1. Why did most of the companies withdraw from the bid.

According to MiDA, the other pre-qualified bidders withdrew from the process due to the changes introduced in the Amended and Restated RfP, primarily the changes in the minimum local Ghanaian participation of 20% to 51%.

  1. When was the Meralco-led Consortium formally introduced to MiDA

Following the issuance of the RfQ, the Meralco-led Consortium comprising of Manila Electric Company (Meralco) of the Philippines, as Developing Country Operator, Operation and Financial Lead, AEnergia SA of Angola, GTS Engineering Services, Santa Baron Ventures Ltd and TG Energy Solutions Ghana Ltd formally made submission to MiDA on 26th February 2018. Subsequently, MiDA approved the Consortium and recognized the group through the acceptance of its Proposal on March 26, 2018. 

  1. What due diligence was conducted on the consortium members

Following the RfQ, each member of the Consortium presented relevant documentation which included, but was not limited to, corporate registrations, financial statements, and industry experience.

  1. When did the Consortium submit its Proposal

The Meralco-led Consortium submitted its Proposal on 26th March 2018.

  1. When was the Consortium selected as the Preferred Bidder

On 12th April 2018, MiDA notified the Meralco-led Consortium that the “Technical Proposal achieved a Technical Score above the minimum threshold provided in Section 4.3 of the RfP”. Following the evaluation of the Financial Proposal of the Meralco-led Consortium, MiDA determined the Consortium as the Preferred Bidder.

  1. What was the next step after the Preferred Bidder was selected.

Under the Amended and restated RfP, the Bidders were given the opportunity to submit a “List of Exceptions” as part of the Bidder’s Proposal. The Exceptions were discussed and resolved between the GoG and PDS during the Negotiation Period that ensued in the course of May 2018. The outcome of these negotiations were utilised to complete the Transaction Agreements.

  1. Who were the parties involved in the negotiations

The parties involved in the negotiation on the part of GoG, were ECG as owner of the asset to be leased, the Ministry of Finance (MoF) as representative of the shareholder (Ghana) of ECG, the Ministry for Energy (MoEn), the Ministry of Justice and Attorney-General’s Department (MoJAGD), the Energy Commission (EC), and the Public Utilities Regulatory Commission (PURC) as regulators of the sector. MiDA, and its advisers, and MCC were also participants in the negotiations.

  1. What are the Transaction Agreements

The Transaction Agreements refer to three distinct agreements which govern the Concession. These are the Lease and Assignment Agreement (LAA), the Bulk Supply Agreement (BSA) and the Government Support Agreement (GSA). The Transaction Agreements were all executed on 3rd July 2018 and subsequently received Parliamentary approval on 24th July 2018.

  1. Who are the Parties to the Transaction Agreement

The LAA and BSA were executed between ECG and PDS. While the GSA was executed between Ghana, represented by the Ministry of Finance (MoF), and PDS.

  1. What is the Lease and Assignment Agreement (LAA)

The LAA is the primary agreement which governs the relationship between ECG and PDS with respect to PDS leasing the assets of ECG for the 20 years term of the Concession. The LAA sets out the rights and obligations of both ECG and PDS, including the standards which the parties are required to maintain. The LAA includes the PURC Rate Setting Guidelines, Distribution License and Electricity Retail Sale License.

  1. What is the Bulk Supply Agreement (BSA)

The BSA sets out the terms and conditions on which ECG sells power capacity and energy, which PDS purchases. The BSA requires that the Capacity and Net Electrical Output will be provided from the Volta River Authority (VRA) and a group of Independent Power Producers (IPPs) whose Power Purchase Agreements (PPAs) with ECG have been designated as part of Portfolio PPAs under the BSA. 

  1. What is the Government Support Agreement (GSA)

The GSA sets out the framework of the relationship between Ghana and PDS. It also sets out the expectations of Ghana from PDS, which include compliance with the terms of the other Transaction Agreements and the threshold set for local equity participation in PDS; as well as further assuring the rights of PDS.

  1. When and why was PDS incorporated

As part of the terms of the RfP, the Meralco-led Consortium was required to incorporate a Ghanaian entity which would enter into the Transaction Agreements with ECG and Ghana. As such PDS was incorporated on 29th June 2018 and entered into the Transactions Agreements on July 3 2018.

  1. Who approved the investment plan and the structure.

The Investment Plan formed part of the Proposal submitted by the Meralco-led Consortium. This was the basis of MiDA’s determination that the Meralco-led Consortium garnered a “Technical Score above the minimum threshold provided in section 4.3 of the RfP.

  1. How much were the shareholders of PDS required to invest in PDS over the initial 5 year period

PDS was required to invest a total of US$580 million, over the first 5 years of the Concession, at an average of US$115 million per year as a minimum (the Minimum Distribution Investment Commitment (“MDIC”)). The Shareholders of PDS, as a minimum, were required to invest equity of 30% of the MDIC for the period in the ratio in which each of the Shareholder Companies holds shares in PDS.

  1. What had been the progress since the takeover i.e. Transfer Date.

Revenue to sales collection of PDS increased to 95.92%, from a region of not more than 90% at the time of takeover. PDS was appointed as collection agent by ECG on its Retained Accounts Receivable (customer bills issued by ECG) and collections were remitted to ECG.

PDS started with a system loss level of 27.3% but, through various technical and commercial interventions, was able to reduce the figure to 18.6% by the end of June 2019.

Official reports indicate that accumulated debt by ECG had been reduced from GH₵3.365billion to GH₵2.6billion within the first four months of the Concession. Such effective revenue collection meant adequate availability of funds to fuel the entire electricity matrix loop. There was also a reduction of outages through improved efficiencies under the leadership of PDS. Outages of 665 times per week as of Transfer Date in March 2019 had been reduced to 219 times per week. Technical records indicate that the System Average Interruption Duration Index (SAIDI) of 24.87hours from the previous year has been reduced to 17.26hours as of June 2019. This was equivalent to a 30.6% improvement as compared to the same period in 2018 which translated into stable power supply.

  1. What are the Conditions Precedent (CPs)

The CPs refer to 45 actionable points that the Parties to the Transaction Agreement, that is Ghana, ECG and PDS were required to complete between the Effective Date (i.e. the date of signing of the Agreement which was 3rd July 2018) and the Transfer Date which was agreed on as 1st March 2019 by the parties.

  1. Were all the CPs completed before the Transfer Date.

Most of the CPs were satisfied before the Transfer Date, i.e., March 1, 2019. However, for legal and procedural reasons, some CPs were converted into Conditions Subsequent that were to be completed within the first six (6) months post-Transfer Date.

  1. Were the issuance of Payment Securities part of the CPs

Yes. As part of the CPs, PDS was required to present two payment securities, either in the form of Letters of Credit or Demand Guarantees.

  1. Were the requirement to post the Payment Securities converted from CP to CS

No. Despite non-availability of retail tariffs to be issued by PURC for PDS and the full Portfolio PPA capacity and energy costs as at Transfer Date, MiDA indicated that the Payment Security requirements had to be satisfied.

  1. What were the Payment Securities meant to cover

The provision of the Payment Securities were to ensure that ECG would have access to a pool of funds should PDS fail to meet its monthly payment obligations under the LAA or BSA. The Transaction required the issuance of 3-month cover of the payment obligations under both the LAA and the BSA. The LAA Demand Guarantee (Payment Security) was to cover 3-month lease payment which would be due to ECG based on a Public Utilities Regulatory Commission (PURC) approved figure whereas the BSA Demand Guarantee (Payment Security) was to cover 3-month cost of purchasing Capacity and Net Electrical Output under the terms of the BSA.

The payment securities were not meant to secure the assets of ECG but to secure the obligations of PDS to ECG under the LAA and BSA respectively.

  1. How many Payment Security options were available to PDS

Under the LAA and BSA, PDS had two Payment Security options, namely, the provision of a Demand Guarantee or a Letter of Credit. The templates for the payment securities either as letters of credit or demand guarantees are provided for under the LAA and BSA. The LAA and BSA also allowed PDS to provide other forms of payment security as long as such other form reasonably comply with the terms provided by the LAA and BSA.

  1. How were the amounts covered by the Payment Securities determined

Due to the lack of tariff information, there was no objective determination of quantum. MiDA provided the amounts to be covered to PDS. The approved tariff though should have determined the approved Lease Payment, and cost of Capacity and Net Electrical Output (Power Purchase Cost) and therefore the amounts to be covered by the Payment Securities.

  1. What did banks, with rating specified by the LAA and BSA, require from PDS in providing the Payment Securities

All the Banks approached by PDS, including the prospective Mandated Lead Arrangers, required the commercial information on the Concession i.e. the tariff that PDS is authorized to charge end-users. Since the banks required a level of comfort, they were particular on the determination of the revenues of PDS based on the PURC approved tariff that allows the pass-through of all relevant costs. But due to the absence of the PURC approved tariff, the banks could only issue a cash-backed security. However, the banks’ themselves advised against this option as this was not a commercially viable option.

  1. Why did PDS opt for the provision of the Payment Securities by way of Demand Guarantees and not Letters of Credit.

The LAA and BSA gave the options of either Demand Guarantees or Letters of Credit. All relevant parties agreed that due to the lack of the tariff, PDS was to take the Demand Guarantee option which could be provided by an insurance entity.

  1. Why did PDS not wait to have all the information needed to secure the Payment Securities from a Bank.

MiDA informed PDS that the issuance of the Payment Securities could not be converted from a CP to a CS. Given the Compact II timeline, it was imperative to satisfy these CPs in order to comply with the Transfer Date of March 2019.

  1. Since there was no tariff approved as of March 1, 2019, what tariff did PDS use to charge end users as at the Transfer Date.

PDS implemented the existing tariffs approved by the PURC before the Transfer Date. To make the tariff consistent with the Transaction Agreements, Ghana, ECG and PDS entered into an interim arrangement. This arrangement set out a revenue sharing methodology among the various players within the industry to ensure liquidity, i.e. power producers, including VRA (to be paid through ECG), GridCo, as the transmission service provider, and ECG itself, as leased asset owner, and PDS, as the distribution entity. This arrangement was put in place because the tariff in place prior to 1st March 2019 was not compliant with the Transaction, specifically, the PURC’s Rate Setting Guidelines.

  1. Following the announcement by the PURC of new Tariffs effective July 1, 2019, was the value covered by the Payment Securities issued by PDS consistent with the PURC approved power purchase costs and lease payments

Under the approved tariffs which came into effect on July 1, 2019, with update on October 1, 2019, the 3-month lease payment and power supply costs was 22% less than the amount covered by the Demand Guarantees issues on behalf of PDS.

  1. How much did PDS pay to secure the Demand Guarantees and how was the payment made.

The Demand Guarantees cost PDS a total of Twelve Million Two Hundred and Fifty Thousand Dollars ($12,250,000), as an all-in fee to CAL Bank (CAL) as advisor and arranger of the Payment Securities issued through Donewell Insurance Company Ltd (Donewell). Two-thirds of the fee was payable upfront prior to issuance of the Demand Guarantees and this was paid by some of the Ghanaian Shareholders of PDS. No portion of the Demand Guarantee fee was paid from ECG’s revenue at any point in time. The cost of the Demand Guarantees which is to be borne annually is an operational (mandated) cost that is to be paid by PDS as part of its operating expenses.

  1. What was the issue with the Payment Securities i.e. Demand Guarantees

The attention of PDS was drawn to a letter dated 16th July 2019 from AlKoot Insurance and Reinsurance of Qatar (AlKoot) on 29th July 2019. AlKoot being the reinsurer of Donewell. AlKoot allegedly denied its obligation under the Demand Guarantees due to purported forgery committed by one of its employees and what it stated constituted fraudulent breach of trust. Two days after, on July 31, PDS was unceremoniously suspended through a mere press release from the Ministry of Information, effectively denying PDS the right to due process. Although suspension is not an option provided in the Transaction Agreements. Subsequently GoG constituted a fact finding mission which included the Minister of Interior and a Deputy Attorney-General and Minister of Justice. The report of the fact finding mission absolved PDS of any collusion for purposes of any wrong doing. The MCC also through MiDA, commissioned FTI Consulting, an independent forensic auditor, to carry out an investigation into the Demand Guarantees. Based on the forensic audit, PDS and all relevant stakeholders are cleared of any wrongdoing in the procurement of the payment securities. 

  1. On what basis has the Concession been terminated

ECG sent PDS a Notice of Termination dated 23rd October 2019. Per ECG’s Notice of Termination, ECG has taken the position that the transfer of assets and operations from ECG to PDS never occurred due to what it says is a failure of the Demand Guarantees. ECG states that the Notice of Termination takes effect from 28th February 2019. ECG has also indicated that it takes the position that the transfer of Staff from ECG to PDS never occurred and as such the Transferred Staff at all material times remained the Staff of ECG.

PDS further received a Notice of Termination from Ghana through the Ministry of Finance dated 28th October 2019. GoG’s Notice of Termination indicated that it is based on a term of the GSA which provides for buy-out payment to be received by PDS if the termination is to become effective.

  1. What actions if any have been taken by the Regulators of PDS and ECG

The Energy Commission by two letters dated 23rd October 2019 purported to cancel both the Electricity Distribution Licence and the Electricity Sale Licence issued to PDS for a period of 20 years from the 1st of March 2019. The Energy Commission states that the cancellation of the licences is founded on the termination of the LAA and BSA by ECG. However, PDS has not accepted that decision and is entitled to pursue its rights under the terms of the Electricity Distribution Licence and the Electricity Sale Licence, as well as the Energy Commission Act, 1997 (Act 541) against the Energy Commission in its status as an administrative body being subject to law.

  1. What are the effects of the Notices of Termination

PDS does not accept the bases on which ECG and GoG assert their right to terminate the Transaction which therefore triggers a dispute as between PDS and ECG on one hand and PDS and Ghana on the other hand.

38. What is the effect of the occurrence of a dispute

All the Transaction Agreements, i.e. the LAA, BSA and GSA have made provision for dispute resolution. The process in all cases starts from an attempt at a negotiated settlement and concludes with arbitration with the final award by any arbitration tribunal being binding on the parties.

  1. What are PDS’ rights post Notice of Termination from ECG and GoG

The LAA has elaborate provisions on post termination actions that the parties are required to take. A transition period of 180 days is required within which the parties are to retransfer in the same manner as was done prior to 1st March 2019. Further within that Transition Period per the terms of the LAA, PDS is to remain responsible for the operation and management of the Utility covering the Southern Distribution Zone and assures the power consuming public of its responsible behaviour.

  1. What is PDS current position on the termination by GoG and ECG

PDS remains a responsible Contracting Party with or without the supervision of the MCC. As such PDS is committed to seeing through its obligations under the Transaction Agreements i.e.: the LAA, BSA and GSA per their terms and within the framework of Ghanaian law which is the governing law of the Transaction. PDS is carefully weighing its options and continues to reserve all its rights under the Transaction Agreements and Applicable Laws to pursue all available causes of action.

 

 

 

Source: www.energynewsafrica.com

 

 

 

 

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