The Government of Colombia, through the National Mining Agency ("ANM") has published for comments the terms of reference of the objective selection process ("Mining Rounds") that it plans to carry out next year for the award of Mining Strategic Reserve Areas ("AEM").
Although documents are not final yet, we have summarized the main principles and conclusions.
I. PROCESS
The Mining Round will be carried out through ANNA MINERIA, the platform created by the ANM for the management of mining contracts. It shall have a maximum duration of six (6) months and shall be divided into the following stages:
1. Presentation of the Offer.
2. Offer Evaluation.
3. Publication of the Offer Evaluation Report.
4. Presentation of Counteroffers.
5. Evaluation of the Counteroffers presented.
6. Publication of the Counteroffer evaluation report.
7. Offer Improvement Presentation (by the Bidder) - Once the Counteroffer evaluation report has been published, the initial Bidder will have a term of fifteen (15) days to exercise its Opportunity for Improvement.
8. Evaluation of Improved Offer
9. Final evaluation report.
10. Award of the Contract.
II. DISPUTE RESOLUTION
For the purposes of dispute resolution, national commercial arbitration has been established in accordance with the Rules for National Arbitration of the Arbitration and Conciliation Center of the Bogota Chamber of Commerce
III. BID BOND
For the purposes of submitting Offers and Counteroffers, the participant shall submit a Bid Bond, which may be presented in the following forms: (i) insurance policy; (ii) trust; (iii) bank guarantee; or (iv) stand-by letter of credit.
When the Offer is submitted by a Plural Structure, the guarantee must be granted on behalf of each of its members.
The insured value must correspond to ten per cent (10%) of the total value corresponding to the Mandatory Exploratory Program.
Foreign bidders without domicile or branch in Colombia may grant a stand-by letter of credit issued by financial institutions abroad, confirmed by a local bank and payable in Colombia. A Plural Structure will be considered foreigner for this purpose when its Foreign Members without domicile or branch in Colombia have at least 50% of the total participation in the Plural Structure.
The Bod Bond will be enforced in the following cases:
(i) Non-subscription of the Agreement in the terms and within the time limits and conditions provided for in the Terms of Reference.
(ii) Failure to extend the term of the Bid Bond when the term provided for in the Terms of Reference for the Award of the Contract is extended or when the term provided for the subscription of the Contract is extended.
(iii) Failure to establish a branch or domicile in Colombia in the case of foreign persons not domiciled in Colombia.
(iv) Failure by the Successful Bidder to grant the contractual guarantees required by the ANM in the Contract, in full compliance with the applicable conditions and requirements, in accordance with the terms of the Contract and as required by applicable law.
(v) Withdrawal of the Offer.
(vi) The non-submission by a Participant with Restricted Qualification (Habilitacion Restringida) of the first-demand bank guarantee or the irrevocable investment commitment of a Private Equity Fund, within five (5) days of the date of issuance of the administrative act containing the final evaluation report in which the Participant with Restricted Qualification (Habilitacion Restringida) is selected.
IV. EXPLORATION PROGRAM
The exploration activities subject to the contracts are subdivided into two programs:
(i) Mandatory Exploratory Program.
(ii) Additional Exploratory Program.
V. TECHNICAL EVALUATION PLAN
The Technical Evaluation Plan is intended to enable the Bidder to assess the potential of the AEM for which an Offer is presented and to identify the elements that allow it to define whether it wishes to continue the exploration and production stage of the Contract over all or part of the AEM.
Through this Annex, the Bidder shall inform the ANM of the exploration activities it hopes to carry out in the year, which can be extended for up to one (1) more year. The Plan shall contain its work program, which will be developed under exclusive operational responsibility.
This element of the Offer will not be considered for evaluation purposes. Its content will be essential for the ANM to verify the progress of the Successful Bidder's activities and to administer the information obtained in development from this first stage of the Contract.
VI. INCENTIVES FOR SUCCESFULL BIDDER
a. Early Technical Evaluation
The Contract provides for the possibility of including a previous phase to the start of the Exploratory Program that will allow the exploration of the AEM for the benefit of the Successful Bidder.
During this phase, the Successful Bidder may have the following benefits:
(a) It will be able to advance different exploration activities to assess the technical feasibility of the Project.
(b) In the event in which the Successful Bidder does not obtain the expected technical feasibility, it shall have the power to terminate the Contract without continuing with the stage of operation.
(c) This stage may have a maximum duration of one (1) year, extendable for up to an additional (1) year, provided that the ANM considers that there are sufficient reasons to extend it.
(d) Additional investments made by the Successful Bidder at this stage shall be taken into account for the fulfilment of commitments at the exploration stage.
(e) In the event in which the Successful Bidder chooses to advance the Technical Evaluation Plan, it will be exempted from cancelling the value of the land use fee (canon superficiario) for the first year of technical evaluation.
b. Incentives for accelerated exploration
The Contract provides for certain benefits for the Successful Bidder that achieve a reduction of the time of the exploration stage and start operating activities in a shorter time.
These benefits include staggered payment of land use fee (canon superficiario) as follows:
(a) First year: The Successful Bidder will only pay 25% of the value of the land use fee (canon superficiario).
(b) Second year: The Successful Bidder will only pay 50% of the value of the land use fee (canon superficiario).
(c) Third year: The Successful Bidder will pay only 75% of the value of the land use fee (canon superficiario).
(d) Fourth and fifth year: The Successful Bidder will pay one 100% of the value of the land use fee (canon superficiario).
(e) Sixth and seventh year: The Successful Bidder will pay 125% of the value of the land use fee (canon superficiario).
(f) Eighth and ninth year: The Successful Bidder will pay 150% of the value of the land use fee (canon superficiario).
(g) Tenth and eleventh year: The Successful Bidder will pay 200%) of the value of the land use fee (canon superficiario).
c. Discount on land use fee (canon superficiario)
The Contract includes the Successful Bidder´s ability to recover payments made due to land use fee (canon superficiario) during the exploration stage up to 100% for the first five (5) years.
Once the Successful Bidder initiates its operating activities, it may deduct from the payment of the additional considerations set out in the Contract up to 100% of the value corresponding to the land use fee (canon superficiario) during the exploration stage in the first five (5) years of development of operating activities.
This discount shall be made in proportion to the paid value for those years.
VII. OFFER ASSESSMENT and COUNTEROFFER
a. Qualifying Elements Once compliance with the requirements set out for the Mandatory Exploratory Program has been verified, the ANM will proceed to evaluate the Offer in respect to the Consideration Additional to Royalty and the Additional Exploratory Program.
b. Evaluation Factors
c. Evaluation Procedure:
i. Mandatory Exploration Program
The ANM will assign the corresponding score for each unit of exploratory activity included in the offer. The Bidder shall meet the minimum score required for the relevant AEM, in accordance with the provisions of the Annex.
Once the ANM verifies compliance with the minimum score required for the Mandatory Exploratory Program, the other qualifying elements of the Offer will be assessed.
The following is an example of the table to be submitted to express the proposal to the Mandatory Exploratory Program
The activities and assumptions to be included in this Annex (in development) should not be interpreted as the exploration program, but as a benchmark for determining the scoring system based on the approximate value of the basic investments to be implemented in the early stages of exploration of the project.
The Bidder must prepare its proposal based on the activities described listed and complying with the minimum scores established per exploration phase for the AEM of interest (to be defined).
The total score of each activity will be converted to Colombian pesos (COP) by multiplying the points by the value corresponding to the Current Legal Monthly Minimum Wage (SMMLV) at the date of submission of the Offer, not including VAT.
Finally, this value will be converted to US Dollars (USD), in accordance with the Representative Market Rate (TRM) certified by the Colombian Financial Superintendency or by the entity that replaces or assumes the function of certifying this rate, for the day of submission of the Offer.
ii. Additional Exploratory Program
For the Additional Exploration Program, the score will be allocated in accordance with the activities offered in Annex 9 (to be developed) of the Terms of Reference, in a format such as the following:
d. Additional Royalty Consideration
The structure of the Additional Consideration to Royalty (Annex 5) is in the process of being developed.
VIII. THINGS TO KEEP IN MIND
1. The ANM will only accept the Offer submitted first in time, the others will be rejected.
2. One same person or member of a Plural Structure cannot:
a. submit or be part of more than one Offer.
b. participate through a subsidiary, or through its parent company, in persons or companies that have the status of Real Beneficiary of the Bidder, its members, associates, partners or Real Beneficiaries.
Please refer to our previous newflash for further information on the Mining Rounds:
https://bu.com.co/en/noticias/preparing-mining-round-2021
https://bu.com.co/en/noticias/preparing-mining-round-2021-part-ii