Global | Publication | June 2024
Cost overruns and delays have become the norm on mining projects with 80 per cent of mining projects completed late and over budget by an average of 43% (McKinsey).
Anecdotal evidence suggests that overrun percentages have worsened considerably, particularly for critical minerals and metals projects, due to project execution risks not being fully considered and mitigated, and in part due to the continuing impacts that geopolitical instability has had on global supply chains.
A lack of capital available to junior mining companies has also constrained sponsors in the development of their assets, forcing sponsors to focus on driving down costs rather than on achieving a robust risk allocation with their supply chain.
A change in risk appetite: With the ever-increasing demand for the critical minerals and metals that are required to deliver the energy transition, mining companies are faced with an even greater demand to bring their projects online as soon as possible. Sponsors are also faced with supply chains with significant bargaining power given the record order book levels attributable to the global demand for their equipment and expertise.
A balancing act: Sponsors must therefore balance the need to agree terms with their supply chain as quickly as possible with the likely financier demands for robust owner-friendly supply chain terms. Importantly, while some sponsors may look to hide behind their financiers when negotiating terms with their supply chain (by requiring that only the "bankability" requirements raised by lenders in their due diligence process be included in the terms concluded with their supply chain) in our experience it is incumbent on sponsors to ensure that in the first instance the terms negotiated represent an appropriate risk allocation between the company and the supplier rather than seeking to rely on lender due diligence to identify and raise particular bankability concerns with their supply chain terms.
Robust terms: From a sponsor’s point of view, less robust terms will end up having a real impact on the company’s ability to deliver their project on time, on budget and to the required technical specification, and ultimately whether the sponsors are able to meet the completion requirements imposed on them by their financiers regardless of whether the financiers have picked up deficiencies in the risk allocation as part of their due diligence of the material project documents.
Financiers taking a “hands-on” approach: While in the past the degree of financier scrutiny of supply chain terms has typically depended on the type of financing being sought by mining companies, recent experience suggests that, given the extent of cost overruns across the sector, financiers of all kinds are beginning to take a more hands-on approach to reviewing how sponsors are proactively addressing the construction and project delivery risks on their projects.
Robust project execution strategy and supply chain terms: Sponsors should therefore anticipate this scrutiny and look to present their projects in a way which clearly demonstrates how they have diligenced and actively sought to mitigate these concerns. While doing so is clearly beneficial from a financing perspective, sponsors should be mindful of the importance from their own perspective of having a robust project execution strategy and supply chain terms which adequately protect them and their own investment in the project.
Structuring options for project delivery in mining projects are complex, and involve various approaches to managing and executing projects to ensure efficiency, cost-effectiveness, on-time delivery and a successful outcome.
Whichever approach is adopted, the structuring of a project’s procurement and project execution strategies will be key to demonstrating to financiers how the risks inherent in delivering a project under the adopted model have been identified and are being actively managed by the sponsors.
The choice of structure is dependent on many factors, including the size and complexity of the project, the risk profile and the stakeholders involved. We discuss several common structuring options in detail including where we have seen certain approaches be more effective.
These project delivery models include:
Sponsors should ensure that appropriate terms are agreed with their supply chain to ensure that they are able to deliver their project by the deadlines for completion agreed with their financiers.
It is usual for financiers to pay particular attention to the supply chain contracts which are more material in nature. What will be considered “material” in each case will depend on the delivery model adopted but would typically include your EPC or EPCM contract, the key equipment and works packages required to deliver the process plant and required supporting infrastructure, and any offtake agreements.
When agreeing terms with their supply chain sponsors should take care to ensure that they include an appropriate apportionment of construction risk between the company and its suppliers. Supplier standard terms and conditions will almost certainly include a very contractor or supplier friendly risk allocation which would undermine the time and cost certainty of the contracted bargain and would require significant amendment to reflect a bankable risk allocation that would be expected by financiers.
Other key considerations in relation to creditworthiness, performance warranties and liquidated damages are included in the full guide.
Other key elements of the bankability analysis for projects include the technology being employed, the complexity of the project (including the process design, the number of works packages and the consequent interface risks), the jurisdiction in which the project is being undertaken, the location of the project, and the supporting infrastructure required to deliver the project.
These are discussed in detail in the full guide.
Sponsors need to ensure that they administer their contracts properly. Having robust contractual terms is of little use if a company fails to enforce them and/or use them as leverage to hold suppliers to account and ensure that they deliver the contracted bargain.
Too often we see companies being reluctant to properly enforce their terms and conditions and/or failing to flag performance issues (meaning delays and cost overruns in parts of the works or procurement) up the chain to appropriate decision makers within their organisations (including at board level) and other project stakeholders.
This often results in material delay or performance issues being flagged too late for the company to be able to actively manage or meaningfully mitigate the same.
Publication
Miranda Cole, Julien Haverals and Emma Clarke of our Brussels/ London offices are the authors of a chapter on procedural issues in merger control that has been published in the third edition of the Global Competition Review’s The Guide to Life Sciences. This covers a number of significant procedural developments that have affected merger review of life sciences transactions.
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