The following guidance outlines the key issues that should be considered when consent of the Procuring Authority is required for a Project Company change of ownership.

A. When assessing a change of ownership, consider the interests of the Procuring Authority and broader government considerations

A request for a change of ownership made to a Procuring Authority should be allowed, provided that such a change does not increase the risk to the government or diminish the public benefit. As described in Subsection 3.6.1 (Background), there can be benefits for the Procuring Authority, the Project Company and the government more generally in allowing changes of ownership, but these benefits must be balanced with the risks associated with such changes..

The following are some examples of how a change of ownership may adversely affect the Procuring Authority and should be considered along with any specific provision in the PPP contract or under the applicable laws:

a)   Does the change of ownership adversely impact the ability of the Project Company to carry out its obligations under the PPP contract without the expertise of the relevant equity investor?

b)   Is the proposed new equity investor solvent and reputable? Has it fulfilled all of its equity commitment obligations (i.e. has it contributed all of its required equity capital to the Project Company)?

c)   Does the change of ownership affect the Procuring Authority’s or another government department’s liabilities (including contingent liabilities) under the PPP contract or some other applicable law?

d)   Does a conflict of interest arise between the Procuring Authority and the proposed new equity investor or another relevant stakeholder? Can it be effectively managed?

e)   Is it in the public interest to approve the change of ownership and the introduction of a new equity investor? (For example, public interest may be related to any adverse impact on national security, or in regard to the integrity of the proposed new investor.)

Any matters of a sensitive nature related to the Procuring Authority’s decision to withhold its consent to a change of ownership (e.g. on the basis of public interest) may be dealt with in a confidential side letter.

There are many instances where the expertise in managing a project’s assets are provided by third parties (such as a specific management company) rather than the equity investors themselves. It is important that those arrangements are carefully reviewed and that the required resourcing and expertise to continue to manage the project’s assets in an effective manner is maintained through any change of ownership.

Example – Considerations for a change of ownership

The Project Company for the anonymised hydropower plant project in Brazil went through a variety of changes of ownership guided by changes in the equity investors’ legal structure and ownership. The changes had to be reviewed and approved by the Procuring Authority. When granting its approval for a change of ownership in the Project Company the Procuring Authority’s main concern was to ensure that the new equity investors were financially stable and technically capable to continue the operation of the project.

For more information, see the Hydropower Plant Case Study.

B. Dedicate appropriate resources to assessing a change of ownership including external advisors as necessary

C. Consider the interests of the lenders when assessing a change of ownership

Questions & Answers

View our list of previous questions and answers or submit a question to our PPP Contract Management team.