5/22/22, 5:08 PM Vicky Bowman: ‘What’s important is to ensure a level playing field’ | Frontier Myanmar They have been receptive, particularly if you can offer workable solutions and at the right time. Key government officials are busy people. They are not very interested in listening to NGOs who are just telling them what’s wrong. They are more receptive to realistic advice to help them get it right. We’ve identified ways in which the government could require business to be more responsible, such as on how to achieve more effective and consistent implementation of requirements for environmental impact assessments. We’ve suggested textual changes to the oil and gas production sharing contracts, the draft Investment Law and Companies Law, and on the telecoms master plan – and the government has taken these up. They also participated in the multi-stakeholder discussions we’ve arranged on the oil and gas and tourism sectors around issues like EIA [environment impact assessments], community engagement and grievance mechanisms, which in some cases have brought them into the same room with business and civil society to discuss these issues openly for the first time. U Thein Sein’s administration was credited for fair and transparent bidding processes for the telecommunications and foreign banking licences. Has that set a template for future bids? Yes, we believe that these bids were well regarded by the industry, which is a good test. However this shouldn’t be viewed as a question of fairness regarding foreign participation. It’s Support independent journalism in Myanmar Sign up to be a Frontier member. just as important that these processes are fair for Myanmar companies. One aspect which differentiated the telecoms and banking rounds was that the government made effective use of international consultants. This allowed them to outsource the detailed legwork to people who had done it before and could therefore do it quickly and effectively. It ensured that the process met current international good practice and also gave bidders confidence in the integrity of the process. Another factor – at least in the telecoms round – was that the criteria on which the bids would be scored were published. These seemed to be both exhaustive and rational for what the country was trying to achieve, and included aspects related to responsible business behaviour, such as human resource management and social investment. What could have been done better in the last oil and gas concession bids? The scoring criteria were not public. As far as we are aware, no weighting was given to the company track record for responsible business conduct in areas of real importance to the oil and gas industry such as safety, community engagement and environmental protection. The fact that all the concessions were tendered at once meant that the government’s capacity to handle the subsequent negotiations was overwhelmed. It risked pushing up costs as companies all start the same activities at the same time. That said, the government was, probably by luck, able to capture both the excitement about ‘the Myanmar frontier’ and the fact that in 2013 the price of oil was more than three times what it is today. If they were to tender anything today, I doubt they would get many bidders. Another problem was that we did not see any intra-governmental consultation by MOGE [Myanma Oil and Gas Enterprise] on the draft model Production Sharing Contract. For example, the EIA requirements in the PSC were not consistent in terms of timing and approach with what Myanmar Investment Commission was asking for, or what the Ministry of [Environmental Conservation and Forestry, MOECAF] wants. This left companies confused about EIA requirements. Nor did MOGE seek feedback from external stakeholders, including companies on the model contract before putting it in place. Consequently a lot of time was spent unnecessarily after the tender negotiating and clarifying points with companies, which in some cases is likely to have led to divergent contract terms. The U Thein Sein government has approved EIA procedures for new projects. What about enforcement? And can they apply to existing projects? There are two aspects to enforcement. One is enforcement of the EIA process itself, which includes ensuring that EIAs are comprehensive and relevant, consider all material impacts, and propose adequate mitigation measures in the environment management plans [EMP]. It also means enforcement of the requirements in the procedures around consultation. This needs to be genuine, not tickbox. The procedures require disclosure of the EIA, i.e. publication, which needs to be done by companies 15 days after they send the completed EIA to the ministry, as well as disclosure by the ministry itself, and the seeking of comments. https://www.frontiermyanmar.net/en/vicky-bowman-whats-important-is-to-ensure-a-level-playing-field/ 2/7