MC Livesey QC Bar Chambers 30 August 2018

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MC Livesey QC Bar Chambers 30 August 2018 Report to the Honourable Vickie Chapman MP, Attorney-General for the State of South Australia into the Procurement of Diesel Generators M.C. Livesey QC Bar Chambers 30 August 2018 Liability limited by a scheme approved under professional standards legislation 2 Contents Introduction ................................................................................................................................ 3 Summary of Answers to the Terms of Reference ...................................................................... 4 First Term of Reference ......................................................................................................... 4 Second Term of Reference..................................................................................................... 7 Third Term of Reference ....................................................................................................... 7 Fourth Term of Reference ...................................................................................................... 8 Context for the generator procurement process ......................................................................... 9 The requirements of procurement ............................................................................................ 12 Short-term electricity generation procurement ........................................................................ 15 The Aurecon draft concept and cost estimate .......................................................................... 25 State owned gas-fired electricity generation plant ................................................................... 26 The Public Works Committee .................................................................................................. 27 Developments in November 2017 ........................................................................................... 31 Procurement and relocation: The State-owned emergency power plant ................................. 34 The First Term of Reference .................................................................................................... 36 The Second Term of Reference ............................................................................................... 39 The Third Term of Reference .................................................................................................. 42 The Fourth Term of Reference ................................................................................................ 42 Conclusion ............................................................................................................................... 43 Attachment 1 – Initial Request for Documents .................................................................... 45 Attachment 2 – Responses to Request for Documents, Further Requests ........................... 46 3 Introduction 1. On 3 April 2018 I was appointed to the role of Special Investigator to examine the procurement of nine diesel generators by the former Government.1 2. I was instructed to review all relevant South Australian Government files and other documents and to report by 30 June 2018 on the following Terms of Reference: 2.1. The lease and subsequent purchase of 9 aero-derivative turbines from APR Energy and, in particular, whether the purchase option is binding, and what advantage, if any, there was in exercising the option early; 2.2. Whether all procurement policies and guidelines were followed in exercising the lease and purchase option; 2.3. The financial exposure of the State and any other relevant matters arising from these matters; 2.4. Options open to the government with regard to the future management and ownership of the turbines and the financial implications of such options. 3. I have been assisted by officers in your Department, by officers in the Department of Treasury and Finance (Treasury), and by officers and contractors in the Department of the Premier and Cabinet (DPC), primarily those who formed part of the “Energy Team”, tasked with implementing relevant aspects of the former government’s “Energy Plan”. This assistance included responses to my requests for all relevant documents.2 4. This report was due on 30 June 2018. However, as I was unable to access the key submissions made to Cabinet,3 which I was told contained financial and other analyses concerning the decision to obtain, and ultimately to exercise, the option to purchase on 28 November 2017, an opportunity was given to the Opposition Leader to consent to their release. Ultimately consent to see those submissions was not given. Apart from one spreadsheet supplied to me in connection with my investigation,4 I have seen no comprehensive or contemporaneous independent financial analysis of the long-term implications of exercising the option when it was announced in August 2017, or when it was exercised in November 2017. Naturally, that analysis may be contained in documents that I have not seen. 1 Confirmed by letter dated 4 April 2018 from the Acting Chief Executive, Attorney-General’s Department (AGD). 2 Attachment 1 is my request for documents on 6 April 2018. Attachment 2 is an explanation of the responses received, some of the meetings and conversations held in connection with my investigation, and a listing of all documents provided to me by officers of the “Energy Team”. 3 I wrote to DPC on 23 May but was not advised until after 5pm on Friday, 28 June 2018 that my request had been referred to the Leader of the Opposition – see Attachment 2. 4 “NPV Reports: Evaluation Table, APR Turbine Buyout Options – Draft: 200MW Temporary Generation – Financial Buyout Model”, prepared by SA Power Networks on 12 June 2017. 4 5. It is important to recognise that this investigation is not a Royal Commission, and I have no power to compel information or evidence.5 I was not authorised to conduct hearings. In addition, I am not asked to comment upon, or determine the responsibility for, decision-making by any particular person. Accordingly, my report is expressed in general terms and without whatever advantage might be associated with giving those who were closely involved any opportunity to comment on any aspect of this report. In the main, my report is based on my review of the various documents supplied to me. I have treated the documents supplied to me as comprehensive responses to my requests. I have made my findings on the balance of probabilities, assuming the documents supplied to me are genuine and accurate records of what they purport to contain. 6. In what follows I have initially set out, really by way of summary, my answers to the Terms of Reference, followed by a narrative review of the information provided to me as the result of meetings and conversations with various department officers, as well as from my review of the folders of documents provided, together with a volume of email correspondence, before considering each of the terms in more detail. I have not attempted anything like a comprehensive exposition of the many complex engineering and economic questions inevitably raised when considering issues associated with the supply of electricity to South Australian consumers, whether over the last few years or over the potential operating life of the turbines, 25 years into the future. Summary of Answers to the Terms of Reference 7. As to each of the Terms of Reference: First Term of Reference 7.1. The lease and purchase of nine turbines was undertaken as one part of the former government’s “Energy Plan”, intended to provide “energy security” in the form of electricity supply to South Australian consumers during emergencies caused by disruption to supply from the Australian electricity market. The turbines were intended to avoid further ‘black-outs’ of the kind experienced in South Australia during late 2016, early 2017. Initially the turbines were intended as a short-term option, to be based at two sites, and available if required in emergencies: they were procured under a lease arrangement with an initial period of 13 months and a further 12-month optional lease period. 7.2. The lease arrangements included an option to purchase granted by deed in August 2017, following a report to the Joint Steering Committee in June 2017 and preliminary relocation analysis by Aurecon in July 2017. An announcement of the decision to acquire was made by the then Premier and Energy Minister in early August 2017, rather than proceed with the separate construction of a permanent gas-fired emergency power station. More detailed analysis of relocation options was undertaken by Aurecon in October 2017. 5 Cf., Royal Commissions Act 1917, s 10 5 By late November 2017 it was decided to exercise the option to purchase the turbines, although consideration had been given to this step from June 2017. 7.2.1. The Option Exercise Notice was executed by the then Treasurer and Energy Minister, and witnessed by the then Premier on 28 November 2017. On the same day the Asset Sale Contract was executed by the Energy Minister and witnessed by a senior officer. The exercise of the option, and the Asset Sale Contract, are binding on the State of South Australia. 7.2.2. It is difficult to determine the concrete advantage associated with exercising the option early. By November 2017 the short-term generation facilities were in place, ready for the summer of 2017/2018. There may have been some assistance to early planning for the relocation of the turbines to one site with access to a gas connection, and concern about the approach
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