Brief on Draft Model Concession Agreement on PPP in Coal Mining
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Brief on Draft Model Concession Agreement (MCA) on Public Private Partnership (PPP) in Coal Mining
With a view to augmenting coal mining capacity, bridging the gap between demand and supply of coal in the country reducing transaction cost, ensuring transparency, Public Private Partnership (PPP) has been identified as a focus area for attracting private capital in coal mining. Private participation has always proven good results to any sector including power sector with Electricity Act 2003 focusing on greater participation in generation transmission and distribution segments. In this regard, Planning Commission has prepared a draft Model Concession Agreement (MCA) for PPP in Coal Mining for discussion with stakeholders and experts, to be used by the owners of captive coal mines. Salient features of the draft MCA are as follows:
- Elements of financial viability : The three critical elements that determine the financial viability of coal mining projects are the concession period, capital costs and mining charge. The concession period for a coal mining project should be fixed keeping in view the expected life of the mines. It could be fixed for a period of about 20 years, including the construction period, with a provision for extension of 5 years at the option of either the Concessionaire or the project authority (the “Authority”). Yet another extension of upto 10 years can be undertaken if both the parties so agree. This timeframe should enable a robust project structure.
- Fixed Charge : The Concessionaire shall be paid a Fixed Charge for availability of the mines for excavation and delivery of coal equivalent to the specified annual production programme. This would be a pre-determined amount linked to the pre-determined estimated project cost. The Fixed Charge actually payable to the Concessionaire would be reduced proportionate to any reduction in the availability of the mines for excavation and delivery of coal. An annual increase of 2 per cent in Fixed Charge has been stipulated to account for the increase in mining cost as the excavation goes deeper. The Fixed Charge so determined shall be revised annually to reflect 80 per cent of the variation in WPI.
- Investment Support : The Authority shall provide to the Concessionaire, a pre-determined amount of investment support by way of a capital contribution ranging between 20 and 40 per cent of the total project cost. The investment support shall be payable only after the Concessionaire has expended at least 50 per cent of the equity and shall be disbursed proportionately along with the loan funds disbursed by the lenders. The recovery of investment support shall be undertaken through a deduction in Fixed Charge and appropriation thereof.
- Variable Charge : The Authority shall pay to the Concessionaire a Variable Charge for excavation and delivery of coal, which would be determined through open competitive bidding. The Variable Charge shall be increased annually at a compounded rate of 2 per cent and the amount so arrived shall be revised to reflect the variation in WPI.
- GCV based payments : The payment of Mining Charge shall be linked to the normative Gross Calorific Value (GCV) of coal and shall be payable in terms of a GCV as Adjusted Tonne (GAT). In case of any variation in actual GCV as compared to the normative GCV, the weight of coal shall be correspondingly adjusted for the purposes of payment to the Concessionaire. Thus, if the GCV of coal supplied during an year exceeds the normative GCV, its equivalent GAT shall be eligible for payment of Mining charge.
- Removal of Overburden : The Concessionaire shall be responsible for the excavation, removal and depositing of Overburden so as to maintain the geometry of the mines in conformity with the provisions of the Agreement and Good Industry Practice. The removal of Overburden prior to commercial operation shall be measured in three stages and the cost thereof shall be borne by the Concessionaire as part of its initial capital investment. The cost of removal of Overburden after COD would be recovered from the Mining Charge payable to the Concessionaire. The Independent Engineer shall inspect the mines every year to ensure compliance in respect of removal of Overburden and in case of any breach of its obligation by the Concessionaire, a part of the payments due to the Concessionaire shall be withheld.
- Selection of Concessionaire : Selection of the Concessionaire will be based on a two-stage process of competitive bidding. All project parameters such as the concession period, Fixed Charge, technical parameters and performance standards are to be clearly stated upfront. Based on these terms, the short-listed bidders will be required to specify their financial offer in terms of a unit Variable Charge, without any qualification. The bidder who seeks the lowest unit charge should win the contract. The financial offer for the unit charge shall be made only for the initial year and the actual Variable Charge payable to the Concessionaire will be revised annually based on pre-determined indexation, in addition to a fixed annual increase of 2 per cent.
- Force Majeure : The MCA contains the requisite provisions for dealing with force majeure events. In particular, it affords protection to the Concessionaire against political actions that may have a material adverse effect on the project.
- Termination : In the event of termination, the MCA provides for a compulsory buyout by the Authority, as the site is owned by the Authority. Termination payments have been quantified precisely as compared to the complex formulations in most concession Agreements relating to infrastructure projects. Political force majeure and defaults by the Authority would qualify for adequate compensatory payments to the Concessionaire and will thus guard against any discriminatory or arbitrary action by the Authority.
Source: Cerebral Business Research Pvt. Ltd.
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