Nigeria lost $16bn to non-review of 1993 PSCs – NEITI

March 6th, 2019

…Losses could be up to $28bn

By Obas Esiedesa

The Nigeria Extractive Industries Transparency Initiative (NEITI) has revealed that Nigeria lost at least $16 billion over a ten-year period (2008 – 2017) due to non-review of the 1993 Production Sharing Contracts (PSCs) with oil companies.

NEITI said a quantitative study conducted in conjunction with Open Oil (a Berlin-based extractive sector transparency group) indicates that the losses could be up to $28 billion if, after the review, the Federation were allowed to share profit oil from two additional licenses.

In its latest publication titled, “1993 PSCs: The Steep Cost of Inaction”, NEITI called for an urgent review of the PSCs to stem the huge revenue losses to the Federation. Such a review it said is particularly important for the federation because oil production from PSCs has surpassed production from JVs. Thus, productions from PSCs now contribute the largest share to federation revenue.

As noted in the brief: “Between 1998 and 2005, total production by PSC companies was below 100,000,000 barrels per year while JV companies produced over 650,000,000 barrels per year’’. By 2017, total production by PSC companies was 305,800,000 barrels, which was 44.32% of total production. Total production by JV companies was 212,850,000 barrels, representing 30.84% of total production.”

NEITI in the policy brief stated that the Deep Offshore and Inland Basin Production Sharing Contracts provided for a review of the terms on two conditions:

The first review was to be triggered if oil prices exceeded $20 per barrel. Section 16 (1) of the Deep Offshore and Inland Basin Production Sharing Contracts specifies that: “The provisions of the Act shall be subject to review to ensure that if the price of crude oil at any time exceeds $ 20 per barrel, real terms, the share of the Government of the Federation in the additional revenue shall be adjusted under the Production Sharing Contracts to such extent that the Production Sharing Contracts shall be economically beneficial to the Government of the Federation.”

NEITI observed that this review should have been activated in 2004 when oil prices exceeded the $20 per barrel mark. Although the review was not done in 2004, the judgement of the Supreme Court in October 2018 had mandated the Attorney General of the Federation to work together with the governments of Akwa Ibom, Rivers and Bayelsa States to recover all lost revenues accruable to the Federation with effect from the respective times when the price of crude oil exceeded $20 per barrel.

The second review was to be activated 15 years following commencement of the PSC Act.

Section 16 (2) states that: “Notwithstanding the provisions of subsection (1) of this section, the provisions of this Decree shall be liable to review after a period of 15 years from the date of commencement and every 5 years thereafter”.

At inception in 1993, the PSC terms were drawn up to incentivize and attract oil and gas companies to invest in the exploration and production of offshore fields considering the risks involved coupled with low oil prices. Thus the PSC contracts were supposedly more beneficial to the companies. However, the Law anticipates that the companies would have recouped their investments when oil price increases and after many years of operations, hence the two trigger clauses in the Act.

Since the Supreme Court judgement has addressed the condition for the first review, this second review was the focus of NEITI’s Policy Brief. According to NEITI, this second review should have happened in 2008 and informed why it chose 2008 as the the start date for commencement of estimated losses in the model.

NEITI explained that the analysis was conducted for the seven producing fields of the 1993 PSCs. These are: Abo (OML 125): operated by Eni; Agbami-Ekoli (OML 127 & OML 128): operated by Chevron; Akpo & Egina (OML 130): operated by Total and South Atlantic Petroleum; Bonga (OML 118): operated by Shell; Erha (OML 133): operated by ExxonMobil; Okwori & Nda (OML 126): operated by Addax; and Usan (OML 133): operated by ExxonMobil.

After compiling data from the seven offshore fields on oil production, oil prices, cost of development, operating costs, decommissioning costs, and the applicable fiscal regimes, NEITI explained that financial modeling, the standard methodology in the industry, was adopted to estimate revenue in the study.

The analysis was conducted by changing the fiscal regime of the 1993 PSCs (subsisting regime) to the fiscal regime of the 2005 PSCs. Three estimates were obtained relating to revenues for the 1993 fiscal regime, and two estimates relating to revenues for the 2005 fiscal regime. Two scenarios were considered for the 2005 fiscal regime:

Scenario 1 (SC1): this involved simply replacing the 1993 fiscal regimes with the 2005 fiscal regimes. All aspects of government sharing in profits remained as exists presently. The figures for this scenario provide the lower bound in estimated losses;

Scenario 2 (SC2): this involved replacing the 1993 fiscal regimes with the 2005 fiscal regimes and also amending government sharing for two OMLs [OML 127 & OML 130 (PSA)]. The policy brief explained that in the above two OMLs, government does not share in profits and therefore considers the hypothetical case where government shares in profits which clearly shows that the federation is losing huge revenue by not sharing in profits. The figures for this scenario provide the higher threshold in estimated losses.

The 2005 PSCs were preferred for two reasons the first being the terms have better implication for government take in that it disallows cost consolidation, pegs cost recovery and mandates payment of royalties on all production irrespective of water depth. This is a departure from the 1993 PSCs that provides for zero royalities at water depths from 1000 meters and above. The Second reason is that the 2008 review would have come three years after the 2005 PSCs and it is therefore conceivable that the terms would have been at least at the level of the most current PSCs at that time.

Though there was a 16 July 2007 letter by DPR to the companies that the government intended to review the 1993 PSCs, the review was not carried out.

Thus, three revenue figures were obtained as follows: Total revenues using 1993 fiscal regime amounted to $73.78 billion; Total revenues using 2005 fiscal regime (scenario 1) amounted to $89.81 billion; Total revenues using 2005 fiscal regime (scenario 2) amounted to $102.39 billion.

The implication is that revenue would have increased from $73.78 billion to $89.81 billion if the review had simply been done using the 2005 fiscal regime. This implies a difference in revenue of $16.03 billion. Also, revenue would have increased from $73.78 billion to $102.39 billion if the review had been done using the 2005 fiscal regime and government shared in profit oil in OML 127 and OML 130 (PSA). This implies a difference of $28.61 billion.

In summary, the results showed that between 2008 and 2017, lost revenue to the Federation owing to failure to review the PSC terms was between $16.03 billion and $28.61 billion depending on which scenario one adopts.

NEITI in its recommendations urged the Federal Government to commence urgent process to review the PSC agreement with oil companies now not later.
“That the Federal Government should note that the affected contractors have expressed willingness to negotiate these terms and therefore they and the state governments should be carried along in the review process.

“The NNPC should follow international best practices and make the contracts with oil companies public in other to ensure transparency and maximum government take, as Nigerians can properly scrutinize such contracts and draw attention to areas of improvement”.

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