If the government decides to use Power Purchase Agreements as a tool to obtain renewable energy, what are the features of PPAs that must be monitored by regulators, and the steps that should be taken to promote transparency and cost effectiveness?

You're in the section: Frequently Asked Questions -> Renewable Energy and Energy Efficiency -> If the government decides to use Power Purchase Agreements as a tool to obtain renewable energy, what are the features of PPAs that must be monitored by regulators, and the steps that should be taken to promote transparency and cost effectiveness?

(Response by Steven Ferrey and Sanford Berg, June 2013. The response draws upon extracts from Ferrey (2004) and from other references)

Power Purchase Agreements (PPAs) have been used for decades to obtain private investments in generating capacity in developing countries. This note describes the elements and pre-conditions necessary for implementing PPAs, with applications to contracts for Small Power Purchase Agreements (SPPAs). The focus is on lessons learned, design issues, and risk allocation. The steps (and principles) for regulatory review of PPAs (from Besant-Jones, Tenenbaum, and Tallapragada, 2008—B-JTT) include

(1) reviewing rather than approving PPAs, so the risks remain with contracting parties—but both the risks and party bearing (and mitigating them) are clearly identified;
(2) Ensuring the clarity of obligations on the part of both sellers and buyers; in the Seller Files the application for a PPA review, including a declaration by the purchaser;
(3) Selecting (if needed) an independent party to analyze responses to regulatory questions , with the seller and purchaser paying for the service;
(4) Publication of information about the PPA and the process.

Note that these recommended steps are for a situation where a premium is placed on transparency. The features of contracts and the role of the regulator in establishing rules are outlined below. The concluding section returns to the role of the regulator in promoting transparency and cost-effectiveness throughout the process. Clarity of interconnection rules and other issues are discussed in another FAQ on renewable energy.

PPA contracts applied to renewable energy might not be least-cost in terms of monetary outlays, but could be based on other economic considerations: (1) supporting less mature technologies that may benefit from scale economies or innovations, (2) encouraging diversity in the generation mix (reducing risk of excessive dependence on a particular technology or input), (3) creating local jobs related to fabrication, installation, operation, and maintenance of renewable energy technologies. (Grace, et. al, 2011, p. 14).

Regulators can play an important role in promoting transparency, even though power purchase agreements (PPAs) are basically bilateral contracts between utilities and independent power producers (IPPs). Here, the focus is on Small PPAs (SPPAs) where generation is from a renewable energy resource. Ultimately, customers will be paying for the electricity (or taxpayers will be left covering revenue deficits). In a number of countries, the regulator is required to review the “prudence” or “reasonableness” of such purchases (BJT&T, 2008). In some other countries, including Nigeria, the sector regulator has the responsibility for advising parties to the contract: the government, the purchasing utility, and the IPP. BJT&T focus on fossil-fuel plants, but their benchmarking principles can be applied to RE as well. Relevant issues include reasonableness of costs and risk allocation among the various parties to the contract. The principles for SPPAs are outlined in more detail in Tenenbaum (2013).

Transparent auctions for the PPAs can have a variety of arrangements, as noted by Maurer and Barroso (2011), “They are a mechanism that can be used to promote the development of renewable resources on a competitive basis”:
1. “all-inclusive technologies” where renewable and non-renewable technologies compete directly;
2. Renewable-only technology auctions;
3. Technology-specific actions;
4. Project-specific auctions (such as those for a hydro or geothermal plant);
5. Auctions for demand resources.

Auction designs are discussed in the Maurer and Barroso (2011) volume. The authors point out that auctions are superior to single-sourcing, “beauty-contests,” or bilateral negotiations—which are not necessarily efficient and can be called into question when political power is transferred to another group. Here, the focus is on the middle three types of auctions, and on the role of the regulator in promoting transparency and cost-effectiveness. China, Brazil, and other nations have moved from government-determined FiTs to auctions that reveal expected operating costs of generation plants using renewables. Maurer and Barroso (2011) describe procedures used in Peru, Thailand, Ontario, California, China, Brazil, and Egypt. The case of South Africa’s hybrid REFiT program that utilizes auctions is summarized in another FAQ.

An analysis of five Asian nations (Thailand, Indonesia, Sri Lanka, India [Andhra Pradesh and Tamil Nadu], and Sri Lanka) undertaken by Ferrey (2004) provides additional lessons for regulatory commissions considering the use of PPAs as a tool for promoting renewable energy. These nations were pioneers in developing SPPAs. Each had differing and evolving policies, underscoring the fact that there is no single recipe for encouraging renewable energy. The role of the regulator can include ensuring the transparency of bidding processes, licensing facilities, arbitrating disputes, evaluating the prudency of contracts (without engaging in retrospective regulation), and setting the terms and conditions for interconnection. A summary (and update) of these issues is available in Ferrey and Moreno (2013).

Several important lessons for Small Power Purchasing (SPP) program design and policy have emerged from analyses of these Asian Programs. The lessons relate to the roles of (1) legal infrastructure (including tax treatment of cash flows), (2) solicitation for bids (and the importance of competition), (3) power sales enhancements (like renewable set-asides or net metering), and (4) tariff design (tariff floors, capacity tariffs, or renewable premiums). The rest of this FAQ focuses on steps for policy-makers and regulators.

1. Legal Infrastructure: contracts require careful design and enforcement mechanisms to address dispute adjudication. In addition, the utility’s revenue base is crucial for financial sustainability. Customers that are currently cross-subsidizing others will be in a position to move to alternative suppliers. In addition, project scale and associated risks affect how different stakeholders benefit from SPP programs. Finally, technical issues (like interconnection) and financial issues (including cash-flow) affect the performance of SPPs.

Dispute Adjudication: A framework for structured SPP project development is necessary. SPPs do not spring full-borne from the existing electric sector environment. There must be a system of law, regulation, and utility interface that facilitates orderly SPP development. For example, stakeholders have reported difficulty in accessing neutral court adjudications in Indonesia regarding disputes involving both renewable and conventional IPP projects. The Indonesian SPP program was never successfully implemented, and access to commercial international capital in that country has been truncated.

Cost-Based Principles: Such a structured program operates best when utility operations are organized around and operate pursuant to principles of cost-covering rate design and collection of tariffs. When a utility is self-sustaining financially and organized as a self-sufficient corporate body, its role is not threatened by SPPs, renewable energy projects, or wholesale competition. If not organized on these sound principles, such innovations can threaten the (potentially shaky) revenue base of the utility.

SPP Project Enhancements: Undercutting the value of the tariff to the SPP over time or the principles of the PPA causes SPPs to seek to sell power output to third-party buyers to realize the full market value of the power. In all programs, the first customers lost to the utility system when retail competition is introduced are those customers who have the most attractive load profiles and who are the least expensive to serve. Cream-skimming the most attractive customers by private power retailers occurs whenever competitive supply is sanctioned in any system. Those most likely to exit the system are those who pay a tariff that is above their marginal cost of supply. Therefore, if the retail tariff structure in a country is not based on reasonable cost-based and revenue-recovery principles, any form of competition, whether net metering, energy banking, or retail sales, will cause those loads currently cross-subsidizing the system to be the first to utilize and benefit from these innovations. This can further erode system revenues. The system as a whole needs to be on sound economic, financial, and legal footing to make a transition to innovative legal and transactional structures for SPP development.

Scale of Projects: The eligible maximum SPP size should be scaled to system capacity so that the program applies to smaller projects that will not significantly impact system capacity. Each of the programs surveyed in the study of five Asian nations limits eligible PPAs to no more than 0.5 percent of installed system capacity.

Allocation of Risks: A variety of commercial, sovereign, currency, and regulatory risks are implicitly or expressly allocated in the PPA. Bessant-Jones, Tenenbaum Tallapragada (2008) identifies the following risk factors:

During the construction period
• Increase in construction costs
• Delay in power plant completion beyond the contracted date of entry into service under the PPA
• Failure of power plant to meet specified performance at completion tests
• Government actions (changes in tax code or regulatory rulings)

During the Operation Period
• Inability to operate the plant as envisaged under the PPA due to external constraints (e.g., a transmission constraint)
• Increases in operating costs (arising from government actions, purchaser actions, seller actions or by input/fuel price changes)
• Foreign exchange unavailable or non-convertibility
• Forced outage/de-rating or temporary shortfall in capacity availability
• Prolonged outage from major damage to equipment
• Failure of purchaser to perform obligations under the PPA
• Failure of the seller to meet obligations under the PPA that is caused by the plant operator
• Environmental incidents caused by the seller/operator;
• Assignment, termination, choice of law, and dispute resolution.

A general principle to allocate risk among contracting parties is the ability to control the specific risks. For instance, power producers usually bear the risk of increases in construction cost or delays in commencement of commercial operations; the government or contracting authority bears the risk of government actions and foreign exchange rate and availability. Remedies and recourse should be specified in the PPA contract to avoid lengthy court cases. Factors affecting risk allocation within contracts are discussed in more detail in another FAQ [link to Public-Private Partnerships: Contracts and Risks]

A crucial risk is how the PPA allocates the risk between buyer and seller for respective nonperformance. Great diversity exists in how the systems allocate this risk of nonperformance between seller and buyer. Some PPAs adjust the price paid for power to reflect capacity delivered, thus equalizing through price mechanisms any disparities: the Thai program reduces the SPP capacity payment where the SPP does not deliver, but has no equivalent sanction against EGAT for failure to take power. Other programs employ reciprocal legal obligations. The Indonesia and Sri Lanka PPAs, as originally designed, required both a firm SPP and the utility buyer to use best efforts to deliver and take power. However, PLN later unilaterally altered the Indonesia PPA to allow the utility to refuse to take power and not pay for this deficiency. The Andhra Pradesh PPA makes no payment for capacity value of the power, but requires the buyer to accept all power delivered. The ability of the SPP to wheel power has been made economically prohibitive. By contrast, Tamil Nadu facilitates SPP power wheeling, but the SPP is required to back down power if the utility cannot use the power. Nonetheless Tamil Nadu provides a market alternative when it does not accept power. In both Indian states, there is no firm delivery obligation on the SPP—it delivers on a non-firm basis. In significant contrast, even though the PPA obligates neither party to sell or buy power, the Vietnam program design requires EVN to pay for “deemed energy” even when it does not accept SPP energy. The Vietnam program design shifts the risk for nonperformance to the utility.

Interconnection: Utilities must interconnect with SPPs subject to a straightforward procedure to accomplish this. Priority (non-constrained connection) rights can make a difference, as can queue management (where scarce connection rights are granted (Kaderjak, 2012)). Prioritized dispatch was part of the policy mix in each of the six cases reported by Azuela and Barroso (2011). Significant transaction costs or interconnection risk can doom a project.

Financial Catalysts: International funding (loans, GEF funding, Prototype Carbon Fund (PCF) payments for carbon credits) has been used as catalysts for SPP development. The business plan for the SPP must account for the cash inflows and outflows in a consistent manner if it is to be successful. The conditions investors look for have been characterized as “loud, long, and legal”:

• “Loud—incentives need to be sufficient to make a difference to the bottom line and improve the bankability of projects;
• Long—sustained for a duration that the financing horizons of a project or deal; and
• Legal—a legally established regulatory framework based around binding targets or implementation mechanisms, to build confidence that the regime is stable, and can provide the basis for long-life capital-intensive investments.”

2. Solicitation of Participation and Competition: The transparency of the bidding process is central to stakeholder acceptance of the outcome. The program can be open or time-limited and can involve security deposits to reduce the likelihood of non-performance. Standard offers (like those described by Bessant-Jones et. al. (2008)) facilitate comparisons. The United Nations Procurement Capacity Development Center (http://www.unpcdc.org/home.aspx) provides procurement guides and resources.

Transparent Process: A transparent process is required to build investor, developer, and lender confidence. The program in Thailand operates by declaring in advance the amount of SPP and IPP resources that are sought, and then allocating entitlements and subsidies in order of the most preferred projects and the least required subsidy for renewable projects. This is an objective and transparent program rubric. It maximizes available subsidy resources and uses the market to identify the most viable projects in need of the least government subsidies.

Controlled Solicitation vs Open Offers: An SPP program can be initiated and sustained either by an ordered and time-limited solicitation process or by an open offer to execute PPAs. Thailand and Indonesia employ the former to control the amount and selection criteria for SPP project development. These countries were concerned that they might have sufficient IPP power for the short term, and thus they sought to control the quantity of additional SPP power committed. An ordered solicitation also promotes competitive bidding. If correctly administered, bids through controlled solicitations result in bid price reduction and competition for the best projects and sites. This point has been well demonstrated in the Thai experience. The Indian states surveyed and Sri Lanka have an open standing offer to purchase, although Sri Lanka is implementing some more thresholds and control in allowing developers to freely accept a Letter of Intent (LoI) vesting development rights at a specific site. An open offer allows a constant rolling development of SPPs, much like the original PURPA design in the United States.

Competitive Solicitations: Organizing standardized SPP power capacity solicitations under a uniform set of rules provides greater program competition and uniformity of process than entertaining ad hoc applications. A competitive process allows the utility to compare all SPPs simultaneously against a standard set of criteria. In such a format, the utility retains control of the option to accept SPP offers or decline such offers.

An organized solicitation also allows a competitive process to drive down the bid price for SPP subsidies that may be provided, as demonstrated in the Thai SPP system. Where the system needs additional capacity, an open offer attracts the most SPPs acceptances. Where the system does not have an immediate need for capacity, a controlled solicitation of SPP bids provides the most control as a successful management practice. All the states seem to recognize these appropriate practices.

Milestones and Bid Security: There has been an issue in Sri Lanka and Indonesia with companies procuring LoIs or winning a solicitation, respectively, without sufficient experience or resources to actually develop an SPP project at a site. This is particularly a problem with limited hydroelectric sites (the Thai program has not developed many hydro sites). The developer’s objective is to control either fixed hydro sites or SPP PPA entitlements, and in many instances planned to sell that legal entitlement, once procured, to a sufficiently capitalized and experienced third-party developer. This process does not promote the most efficient and direct SPP development, but rather layers additional transaction costs and parties into the SPP development cycle. Although bid security deposits, limits on assignment of rights, and time limits have a constructive role to play, they must be used intelligently so as not to truncate the SPP market. The Thai program also requires a deposit of 100 baht per kW ($2.50 per kW) of applicants, and more for larger sources.

3. SPP Power Sale Enhancements: A number of factors (or enhancements) can be introduced to improve the likely outcome of SPP mechanisms. First, the use of avoided cost principles can promote cost-effective choices by providers. A renewable set-aside enables higher cost technologies to play a role in expanding system capacity via renewables.

Avoided Cost Principles: The state utility has a monopsony on the purchase of wholesale power in many of the electric sectors of nations in developing countries. This single-buyer model becomes a significant issue with the partial deregulation of wholesale power supply. With the encouragement of IPP and SPP supply, they are still dependent on a single state buyer to both purchase and transmit their power. Many of these programs did not introduce a mature utility regulatory authority before they introduced an SPP power program. Therefore, it is essential that the utility operate in its role as purchaser and transmission entity subject to objective PPA and tariff principles.

Renewable Set-Aside: The Indonesian and Thai program models offer an interesting approach.
They set aside a certain entitlement (capacity) for SPP or renewable SPP projects. This then allows the buyer to competitively evaluate the possible SPP proposals side-by-side simultaneously. Such a process permits a simultaneous decision based on comparability of proposals.

Third-Party Sales: As of 2004, none of the five Asian programs allowed direct third-party retail sales of power by the SPP (except in limited industrial estate areas). However, other states in India did allow direct retail sales, and each of the two states in India surveyed did allow such sales by SPPs in the past before disallowing them. Thailand, which led the initial development of Asian PPAs, was considering moving toward an open market for third-party retail sales. Therefore, experience in other places with direct retail sales, or net metering, is particularly relevant.

4. Tariff Design: The incentives associated with prices affect the willingness of investors to take on renewables projects. Utility avoided cost is likely to be much lower than prices required by new projects to be commercially viable. So contracts (and regulators) must balance the increase in renewables against the implications of SPP for electricity prices. Tariff floors, direct subsidies, bidding, and tariff design (including capacity tariffs) represent ways to incentivize those investing in renewables projects.

Renewable Premiums (Price Adjustments): In systems experiencing current and projected shortages of grid-connected power resources, temporary payment of more than avoided cost for renewable energy and small power development is one method to provide incentives for immediate power resources, and it can reflect the premium short-term value of additional power. Basically, grid shortages can trigger a “rationale” for a price increase. However, there is risk in deviating from the avoided cost concept. If the utility deviates from avoided cost principles at certain times, there is nothing to prevent it from deviating at other times. This possibility can cloud the transparency of the process.

Tariff Floors and Subsidies: In many systems, additional subsidies are necessary to assist higher cost renewable energy and smaller SPP projects. This is evident is some systems where it is difficult to fully subscribe SPP program potential. This subsidy can be accomplished by transparent subsidies, as in the Thai system. Alternatively, there can be a tariff structure that, as in Indonesia and Sri Lanka, supports renewable power projects by placing a floor under the energy component of renewable power sales or reflects a premium for the diversity value of renewable fuels. It is important that the buyer is reimbursed for the premium paid for renewable power.

Price Bidding: Bidding can be employed strategically to minimize the ultimate system cost of renewable power resource development, as with the controlled bidding program for renewable subsidies in the Thai system. Indonesia developed a bidding program for SPP PPA entitlement, but it did not involve individually differentiated subsidies.

Tariff Incentives: It is a successful practice to provide market incentives through the PPA structure. A PPA where the incentive for SPP operational compliance is embedded in the energy (kWh) payment, rather than split into a fixed capacity payment plus an energy payment, maximizes the economic incentive for the SPP to deliver power at peak times. This is because when power is not supplied, 100 percent of the potential revenue stream—embodying both energy and capacity if a capacity payment is included—is lost to the SPP. Properly structured incentives can work more efficiently than penalties. That proper structure is a specialized exercise.

Capacity Tariffs: The SPP PPA tariffs in the Indonesian, Thai, and Sri Lankan programs were designed to include capacity payments in the tariff payment for each kWh-delivered, paid only if the
SPP delivers power. This was designed to provide the maximum incentive to the SPP for dedicated performance and delivery of power, while not invoking any coercive penalties against the SPP for failure to perform to a set standard. This type of simplified incentive is appropriate for renewable
SPPs, where the marginal cost of operation is relatively low compared to the initial capital investment. During implementation in setting these tariff levels, Sri Lanka altered the tariff design to eliminate the capacity component for both short- and long-term contracts.

Standardized PPA: All programs employ standardized PPAs, and most employ either an avoided cost-based tariff or avoided cost principles with a cap on the tariff. All allow some form of long-term firm contract commitment. Asian SPP programs designed to foster renewable energy development suggest a range of successful practices for PPA development in these contexts (See Bessant-Jones, et. al. (2008) for applications to Africa)

Concluding Observations

Although many ways exist to operate an SPP program, certain key PPA elements cannot be omitted or significantly changed without compromising the integrity of the program. The most successful future
SPP programs will assimilate international PPA requisites as a base, and layer onto this base the following: innovative country-specific incentives, competitive embellishments, and risk allocation techniques. Throughout the process, the regulator promotes the transparency of the process and the cost-effectiveness of expected outcomes. To strengthen and build transparent and cost-effective SPP programs in this changing environment the following techniques are relevant:

• Tuning Up the PPA. A correctly structured PPA is the legal foundation of the program. Countries should perform a fresh examination of their existing PPAs to harmonize them with the lessons learned to date and the changing investment environment (using consultants and stakeholder working groups).

• Utilizing Competitive Design. Subsidies of renewable SPPs can be most broadly and cost-effectively implemented with a competitive bid scheme to allocate and determine amounts of subsidies. Competitive bidding can also be used to ration and control the award of SPP entitlements.

• Perpetuating SPP Program Momentum. Where certain land resources or land use permits necessary for renewable SPP (for example, hydro or wind) development are under government control, there is an interest in preventing speculative hoarding of both the sites and permits or LoIs to control those sites. A variety of bid security and milestone requirements can minimize such hoarding by extracting an economic rent for holding those entitlements or requiring progress by certain elapsed times.

• Incentivizing the PPA Relationship. Several fundamental choices are available in designing the PPA to address and regulate the buyer-seller relationship between the SPP and the utility. Embedding financial incentives in the tariff and delivery provisions of the PPA can creatively shift aspects of the legal relationship away from legal sanctions and penalties, and toward internalized self-effectuating market incentives.

• Updating Avoided Cost Principles. A fundamental issue that must be addressed in every system utilizing long-term contracts is whether and how the SPP will be paid for capacity value of its power. Although some nations have elected to take capacity without paying for it, this diverges from avoided cost principles and creates tension in the long-term utility relationship with SPP developers.

• Implementing the Proper Solicitation Mechanism. Programs can alternate between open SPP power solicitations (similar to the traditional PURPA model) or controlled competitive solicitations, as a means to encourage or control SPP proposals. Controlled solicitations for SPP projects can create a hierarchy or “tier” desirability of SPP projects by fuel source, prime mover, environmental attributes, location, system requirements or resource–prime mover diversity, to ensure that full capacity requirements are subscribed in the order of highest value or utility to the national supply plan.

• Evaluating Innovative Measures. The future of SPP programs will involve a combination of innovative program design elements to enable private sector credit support for SPP investments: SPP retail sales, retail wheeling, energy banking, and net metering. Experimentation with these elements in Asia has already begun. These creative elements provide sale and “banking” alternatives for what is otherwise a perishable commodity with a single buyer. This allows independent power to move to its most efficient and highest value use. However, these options must be carefully structured, so that the utility receives fair value for transmission and banking services and its power service obligations are not inordinately compromised by these innovative elements. Careful SPP program design and intelligent PPA design is essential to navigating this challenge.

• Ensuring adequate institutional capacity in the public sector. Weischer et. al. (2011) identify five areas where institutional capacity and governance are important for the development and implantation of sound PPAs:

• Executive agencies’ capacity [and political support] for sustainable electricity;
• Regulatory agencies’ capacity to oversee implementation of sustainable electricity policy;
• Utilities’ capacity to promote energy efficiency and renewables;
• Transparency of policy, planning, and regulatory processes for electricity; and
• Stakeholders’ engagement in policy, planning, and regulatory processes.

Clearly, the energy sector regulator can play an important role in this process: ensuring transparency, clarifying appropriate risk allocations, and promoting the cost-effectiveness of programs. In particular, clear regulatory rules are essential if project developers are to go forward with initiatives (Institutional Approaches to Electrification, 2011). As Azuela and Barroso (2011) conclude in their recent evaluation of experience in selected developing countries, “In practice, the success or failure of RE policy is largely dependent on the sustainability of proposed mechanisms for the recovery of incremental costs.”

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