BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
DOCKET NO. 07A-108EG
IN THE MATTER OF THE APPLICATION OF AQUILA, INC., DOING BUSINESS AS AQUILA NETWORKS - WPC AND AQUILA NETWORKS - PNG, BLACK HILLS CORPORATION, AQUILA COLORADO, LLC, BLACK HILLS/COLORADO UTILITY COMPANY, INC., AND BLACK HILLS/COLORADO UTILITY
COMPANY, LLC, FOR AN ORDER APPROVING THE TRANSFER OF CONTROL AND OWNERSHIP OF AQUILA'S PUBLIC UTILITY ASSETS AND BUSINESSES IN THE STATE OF COLORADO.
ANSWER TESTIMONY AND EXHIBITS OF SCOTT E. ENGLAND STAFF OF THE COLORADO PUBLIC UTILITIES COMMISSION
TABLE OF CONTENTS
I. IDENTIFICATION OF WITNESS AND PURPOSE OF TESTIMONY ... 1
II. ANALYSIS OF AQUILA’S 2007-2012 FINANCIAL PLAN, AND
EXHIBIT SMJ-1………....2
III. RECOMMENDATIONS……….16
APPENDIX A: STATEMENT OF QUALIFICATIONS AFFIDAVIT CONFIDENTIAL EXHIBIT SEE-1 (25 PAGES)- Aquila Financial Plan, 2007-2012.
HIGHLY CONFIDENTIAL EXHIBIT SEE-2 (5 PAGES) - Audit and Discovery Questions and Responses Regarding SMJ-1.
EXHIBIT SEE-3 (8 PAGES) – Supreme Court Decisions on Out of Period Adjustments in Telecommunications.
CONFIDENTIAL EXHIBIT SEE-4 (1 PAGE) – EBITDA Comparison Between Aquila’s 2006 Annual Report and Exhibit SMJ-1.
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I. IDENTIFICATION OF WITNESS AND PURPOSE OF TESTIMONY
Q. PLEASE STATE YOUR NAME AND BUSINESS ADDRESS.
A. My name is Scott England. My business address is 1560 Broadway, Suite 250, Denver, Colorado 80202.
Q. BY WHOM ARE YOU EMPLOYED AND IN WHAT CAPACITY?
A. I am employed by the Public Utilities Commission of the State of Colorado (Commission) as an Economist.
Q. HAVE YOU PREPARED A STATEMENT OF YOUR
EXPERIENCE AND QUALIFICATIONS? A. Yes. It is attached as Appendix A to this testimony.
Q. ARE YOU GENERALLY FAMILIAR WITH THE FILINGS IN
DOCKET NO. 07A-108EG? A. Yes.
Q. WHAT IS THE PURPOSE OF YOUR TESTIMONY?
A. The purpose of my testimony is to:
1. Analyze Aquila’s 2007-2012 Financial Plan Forecast which is attached to the Direct Testimony of Mr. Jurek, as Exhibit SMJ-1, and
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2. Recommend that the Commission deny Black Hills’ future rate case recovery request in general and in the alternative, solely on the basis of the lack of verifiable and credible information contained in Exhibit SMJ-1.
II. ANALYSIS OF AQUILA’S 2007-2012 FINANCIAL (FORECASTED) PLAN, AS SET FORTH IN EXHIBIT SMJ-1
Q. WHAT IS AQUILA’S 2007-2012 FINANCIAL (FORECASTED)
PLAN?
A. This Financial Plan (Plan or The Plan), as presented in Aquila witness Mr. Jurek’s Direct Testimony and presented as Exhibit SMJ-1, as attached purports to forecast Aquila’s financial condition over the 2007-2012 time period.
Q. WHAT IS THE RELEVANCE OF THAT PLAN TO THIS
DOCKET?
A. It is the basis for a request by Black Hills for possible rate
recovery, at some unspecified future date, of certain expenditures related to its acquisition of Aquila. Black Hills intends, apparently, to push this issue to a future rate case for the recovery of any acquisition premium it has incurred in pursuit of this proposed acquisition.
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The Staff recommends disallowance of this request in this docket as to preclude the issue from resurfacing at any time in the future. One, it is improper since ratepayers are harmed. Two, the recovery is base on the forecasts. The Plan itself is unsubstantiated conjecture without
transparency. Apparently, it is Black Hills’ intent to request recovery at a later date once it has “proven” by means of The Plan that is has provided savings to Aquila’s service area. This so called proof will come in the form of comparing Black Hills’ actually incurred costs compared to the unsubstantiated forecasted costs in The Plan.
This proposal is wrong on at least two levels. First, forecasted savings are akin to use of a future test year to set rates. Such methods generally have not been accepted by the Commission. In this instance, as no true-up can occur, rate increases would be based on projected costs. Second the forecast has no credibility. Thus it is of paramount importance that The Plan be completely excluded as basis for a request for recovery now or in the future.
Q. HAVE YOU EXAMINED AND ANALYZED THIS PLAN?
A. Yes.
Q. PLEASE DESCRIBE THE INFORMATION YOU HAVE
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A. I have analyzed The Plan and the related material provided to Staff. The Plan attempts to illustrate the future financial status and operation costs of Aquila for a period from 2007 through 2012. The Plan consists of a presentation style compilation of various costs and income streams, such as Liability Management, EBITDA (Earnings Before Income Tax, Depreciation and Amortization), Rate Case Costs, Various Expenditures, Income Statements, Balance Sheets, and Cash Flows in consolidated form or from each state in which Aquila has operations. This information was made available to prospective investors, including Black Hills, in an effort to stimulate interest in the acquisition of Aquila’s assets evidenced by the five original bids alluded to in Aquila’s response to Staff’s discovery request [Exhibit SEE-2 (PUC1-27(a)] . The Plan was not presented to Black Hills with any supporting documentation or disclaimers in regards to the potential erroneous nature of forecasted values.
Q. IS THE PLAN CONTAINED IN SMJ-1 PROPERLY
DOCUMENTED? A. No, it is not.
Q. IN STAFF’S OPINION WHAT IS PROPER DOCUMENTATION,
IN THIS INSTANCE?
A. Proper documentation means that Staff should be able to replicate the model or numbers presented in The Plan. In this context, “replicate”
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means that Staff, a prospective investor, or a securities analyst should be able to reproduce The Plan if given the data, an executable version of the computational algorithm, a full description of the methods and a clear description of the forecasting techniques. In equivalent terms, the numbers used in the forecast and the calculations used to arrive at the numbers themselves should be available, verifiable, and open to scrutiny.
Q. WHY WAS THIS TYPE OF VERIFICATION NOT POSSIBLE?
A. Staff received the Exhibit and conducted discovery and audit on this issue. The questions promulgated by Staff and the responses thereto are attached to this testimony as Exhibit SEE-2. The response relevant to The Plan was composed of workpapers, in hard copy and disc copy form. It is simply a page of numbers without any explanation which negates any effort to verify The Plan. Proper verification requires an “executable” file such as Excel, a standard practice at the Commission. As noted in Exhibit SEE-2 Aquila has no executable version of The Plan or workpapers of any value to an analysis were provided. For this reason, the documentation at best is poor and is for the most part non-existent. Consequently, The Plan
remains an enigma.
Q. IS IT STAFF’S CONSIDERED OPINION THAT THE PLAN IS
RELIABLE, SOUND, AND OF COMPRISES A BASIS FOR A COMMISSION DECISION?
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A. No, Staff’s view is the exact opposite. The Commission should ignore The Plan and deny any of the Applicants’ requests which rely upon The Plan.1
Q. WHAT IF ANYTHING IS PROVIDED IN THE PLAN OR THE
AUDIT RESPONSE THAT AIDED STAFF’S ANAYSIS?
A. There is a brief bulleted list on page 2 of The Plan, which highlights, but does not explain the construction of the numbers. According to this bulleted list the numbers in this Exhibit are based on the 2006-2008 Forecasted Budget for Aquila which was completed in 2005, but no documentation has been provided to show where these numbers came from. In addition, the values for the years 2007-2012 are based on major changes by the business unit, budget forecasts, and assumptions from the modeled base for 2008 and 2009 (years 2009-2012). The only other further explanation provided on page 3 is another highly abbreviated bulleted list of the major EBITDA changes. The method of calculation of the forecasts was not provided.
1
As a Staff economist, I believe it is important to recognize that the parties to this transaction are pursuing their own private interests, as would be expected and as is encouraged in our society. However, in the context of regulated public utilities, it is legitimate for a regulatory body to soften the effects of those private interests on ratepayers. Forecasts are based on assumptions and assumptions affect the forecast outcome. Thus, Staff expects the forecast assumptions and outcome to favor the interests of the utilities – perhaps to the detriment of the public interest. Consequently, thorough examination of the forecast methods and assumptions is crucial to evaluating, in this instance, The Plan. Without thorough documentation, analysis of Exhibit SMJ-1 is a waste of time.
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Staff believes these passages are inadequate to serve the Commission’s needs. None of these bullets were provided in any empirical form that would allow proper verification and analysis. Thus, the poor quality of the supporting documents for The Plan, leave Staff no alternative but to recommend that the Commission reject The Plan in its entirety.
Derivatively, any request for reimbursement of an acquisition premium in the future, must also be rejected as the Applicants’ have failed to sustain their burden of proof that the request is necessary to the health of the utility, not detrimental to ratepayers and the public interest and otherwise is just and reasonable as explained by Staff Witness Kunzie, who in his testimony, discusses the ratemaking and regulatory principles which apply to the instant circumstances.
Q. IS SMJ-1, THE PLAN, A FORECAST?
A. Yes, apparently.
Q. IS THAT A CONCERN TO STAFF?
A. Yes. All forecasts are based on specific assumptions and methodologies. The use of assumptions is done in an effort to simplify the analysis, but in using them the forecast becomes further removed from reality, which is why forecasts always have a margin of error. The question then becomes what is an acceptable margin of error? One percent? Five percent? Ten Percent? And once an error has been calculated what is done to
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incorporate the information contained in the error to minimize the error in future time periods? As to the methodology there are many different ways to statistically or econometrically analyze data. As an illustration the functional form of the model could be linear, logarithmic, or exponential to name just a few. Due to the above issues specifically and other issues generally it is important to know what assumptions and methodology is used in any forecast to be able to analyze the legitimacy of the results, again none of these were provided by Black Hills or Aquila. It should also be remembered that forecasts are based on models of reality and as such should be compared to reality to measure their validity and therefore any forecast should involve a dynamic process of continual updates and verifications.2
Q. IS THE RECOVERY REQUEST SIMILAR IN CONCEPT TO A
FUTURE TEST YEAR?
A. Yes
2
As a Staff economist, I believe it is important to recognize that the parties to this transaction are pursuing their own private interests, as would be expected and as is encouraged in our society. However, in the context of regulated public utilities, it is legitimate for a regulatory body to soften the effects of those private interests on ratepayers. Forecasts are based on assumptions and assumptions affect the forecast outcome. Thus, Staff expects the forecast assumptions and outcome to favor the interests of the utilities – perhaps to the detriment of the public interest. Consequently, thorough examination of the forecast methods and assumptions is crucial to evaluating, in this instance, The Plan. Without thorough documentation, analysis of Exhibit SMJ-1 is a waste of time.
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Q. WHY MUST THE COMMISSION CONCERN ITSELF WITH THE
SIMILARITY OF THE PLAN TO A FUTURE TEST YEAR? A. Both involve numbers which are conjectural, not actual. By approving
this transaction and the right of Black Hills to recover transactions costs and premiums based on a forecast of undisclosed nature, the Commission would be setting in rate increases sometime in the future based on an unaudited and unadjusted forecast which is similar to use of a future test year to set rates. The Commission has shied away from future test years because the costs are not known, and therefore are not used and useful, see Exhibit SEE-3 and Commission Decision No. C93-1469, dated November 22, 1993 issued in Commission Docket No. 93S-001EG. This
Commission therefore continues to set rates based on actual numbers.
Q. IF A FORECAST IS USED IN RATE SETTING, SHOLD THE
RATES BE TRUED-UP WITH ACTUAL NUMBERS?
A. Yes, without the reality check over or under recovery can, and most likely will, result. Therefore utilities have an incentive to reduce risk in this instance by overestimating revenue requirements.
Q. WHAT IS THE ELEMENT OF RISK THAT BLACK HILLS HAS
NOT DISCLOSED TO THE COMMISSION?
A. Assume, arguendo, that Black Hills’ forecasts result in under recovery of
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ameliorated or eliminated by constructing forecasts which systematically overestimate the need for recovery. If the Commission allows recovery based on a forecast, the recovery should be subject to corrections between actual and forecast values.3 What this boils down to is this: Assuming the Commission is inclined to allow recovery of transactions costs and the acquisition premium, should Black Hills’ compensation be based on actual or fabricated numbers, i.e., actual cost savings or perceived potential savings based on unconfirmed numbers? That is, while Staff does not support premium or transaction cost recovery, if the Commission were inclined to consider recovery of the premium, then a true-up mechanism must be developed on and ordered by the Commission.
Q. WHAT IS THE MAGNITUDE OF THE RECOVERY REQUEST?
A. Black Hills will pay roughly XXXX million for Aquila’s Colorado assets, 14
of which the premium is estimated at about XXXX million [Exhibit No. c2 (PUC1-45(g),1-48(b), 1-48(c))]. 15 16 17 3
This is in part because of the constantly changing technological world that governs all forms of production, including utilities. The use of forecasted years as a base of comparison assumes static (or unchanging) technological production knowledge, unless a technological factor is explicitly added to the model, which invariably results in higher production costs. Use of a dynamic model that incorporates technological advancements will more accurately reflect the changing cost structure of any production process. Without access to the assumptions underlying the model in SMJ-1 I have to assume that the model uses static production technology, which would enable an acquiring utility to more easily show cost savings if they have more up to date technology and industry knowledge. Since Black Hills is obligating itself to provide long term cost reductions, as evidenced by their confidence in their ability to show savings, to serve Aquila’s Colorado service area it will be much easier for them to show these supposed cost reductions using unverifiable forecasted values based on static technological processes.
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Q. HOW DO THEY PROPOSE TO RECOVER THIS REQUESTED
AMOUNT?
A. If granted the recovery of the acquisition premium and transaction costs will come at the expense of ratepayers.
Q. DOES THE METHOD OF RECOVERY BASED ON THE
FORECAST POSE ANY PROBLEMS?
A. Yes. With Black Hills usage of a forecast to illustrate savings there is no way to objectively verify that it has or has not met the efficiency gains it forecasts. Basing recovery in this fashion is equivalent to a simple rate increase to ratepayers without having a rate case. If Aquilas’ forecast is incorrect, the amount to be recovered by Black Hills does not change. Further as a general regulatory matter if productivity gains are achieved these gains should be shared with ratepayers.
Q. WHY IS THE CONSIDERATION OF THE MOTIVE OF THE
PARTIES TO THIS TRANSACTION IMPORTANT WHEN CONSIDERING THE USE OF SMJ-1 AS PROPOSED BY THE JOINT APPLICANTS?
A. The motivation of the parties to the transaction provides an insight into the lack of consideration of customers’ and ratepayers’ interests, who will be footing the bill for this transaction. It also clarifies incentives to overstate forecasts and to eliminate true-up.
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Aquila’s motivation is influenced by their desire to receive the highest possible sale price for their assets. To achieve a higher sell price Aquila had to encourage greater interest from investors in order to increase the number and magnitude of bids. As the number of bids increase, the higher those bids had to be to actually be considered by Aquila. This investor interest was created by Aquila through its promotion of its attractiveness, accomplished through SMJ-1’s illustration of the ease of realizing gains, and the knowledge of Aquila of a buyer’s of the potential ability to get full compensation for paying a premium price.4 Since utility companies are already compensated for reasonably incurred costs, a regulated utility’s attractiveness comes in the form of decreased risks relative to non-utility companies and enhanced access to other revenues in the form of
acquisition premiums and transaction costs recovery. Aquila received five bids for their assets with Black Hills and Great Plains earning the winning bids as evidenced by responses to Staff’s Discovery Requests [Exhibit SEE-2 (PUC1-27(a))].
Q. WHAT ARE THE MOTIVATIONS IN THE PLACE FOR BLACK
HILLS TO ACCEPT A POSSIBLE OVERSTATED FORECAST BY AQUILA?
4
Premium price and transaction cost reimbursement is free money to both the buying and selling utility. As such, there is no check on prudence of the expenditure, except of course, through regulatory review. See Commission Decision No. C91-1729, Docket No. 91A-589E.
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A. In order to gain access to these enhanced revenues, the acquiring utility will attempt to demonstrate that it will save money through some combination of increased efficiency, decreased costs, and/or increased productivity so that the acquisition premium and transactions costs are financed through these efficiency gains. Thus, in theory, rate payers are not harmed.5 Thus, there is tremendous incentive to overstate these efficiency gains.
Q. DOES BLACK HILLS HAVE ANY OTHER MOTIVATION TO
ACCEPT POTENTIALLY OVERSTATED FORECASTS?
A. Black Hills’ must get approval of its acquisition from their shareholders who will be interested in how this impacts their return on investment. Paying a premium price for an asset will generate downward pressure on numbers will make the future revenue streams look both larger and more secure. It is important to remember that using the forecasted numbers for revenue and for costs that may or may not reflect realized costs or
revenues. The use of these forecasted numbers makes it quite easy for Black Hills to ‘prove’ their cost savings capabilities and therefore the
5
This line of thought is objectionable for two reasons. One, the price premium is not necessary for the provision of reasonably-priced, high quality utility service, as Black Hills has stated it will provide the same quality of service as Aquila not an improvement. Two, in an attempt to increase efficiency and reduce costs, there is great incentive to cut corners by sacrificing service quality and safety. This incentive may operate, up to a point, as a benefit to ratepayers but has the potential to be pushed too far. An excellent example of this incentive can be found in Commission Docket No. 99C-371T, the U S WEST service quality docket.
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acquiring utility’s rate-of-return, all other things unchanged.6 In order more secure future revenue streams are, the more likely the acquisition will be approved by shareholders. In this instance, the use of forecasted to ability to get recovery for the acquisition premium and transaction costs, therefore will be more easily meet with shareholder approval.
Q. ARE YOUR CONCERNS IN THIS DOCKET RELIEVED IN ANY
WAY, IF SMJ-1 COULD BE VERIFIED AND RECREATED? A. Even if the forecasts are verifiable, recreatable and immaculate, basing
recovery on a forecast remains problematic. Generally, a forecast operates under certain assumptions. If those assumptions are incorrect, the forecast likely is wrong. Forecasts cannot predict the unpredictable but the
unpredictable can alter the needs of a utility. Certain events simply cannot be foreseen. Thus, without some means of correction, the productivity gains may be different the forecast.
Q. DOES THE PLAN, EXHIBIT SMJ-1, WHICH
HASUNVERIFIABLE FORECASTED NUMBERS CALL INTO
6
If an asset can produce a certain income stream, then a price can be calculated for that asset. If the price paid for a particular asset’s income stream exceeds the calculated value of that income stream, then the rate of return realized on that asset must fall. For example, if one purchases a bond but pays more than the quoted price, the return on that asset unequivocally is lower. Clearly, this is an irrational action. However, this example is precisely the problem with the price paid by Black Hills. Here, Black Hills is asking the Commission to bail out management and Black Hills stockholders. Staff cannot endorse this request. If Black Hills management and stockholders covet Aquila’s assets, then together they can pay the premium insofar as no benefit to ratepayers whatsoever has been demonstrated.
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QUESTION THE OBJECTIVENESS OF THE ACTUAL NUMBERS RELIED ON IN THIS TRANSFER OF ASSETS?
A. Yes. SMJ-1 is based on forecasted numbers in which no proper documentation has been provided. This fact, when combined with the incentives for Aquila to overstate its costs and the ability of Black Hills to overstate potential efficiency gains and revenues creates a reasonable suspicion of the accuracy of the forecasts. Suspicion is further increased when the forecasted numbers are compared to actual numbers from Aquila’s 2006 Annual Report, as seen in Exhibit SEE - 4. This exhibit illustrates the substantial increase in Aquila’s EBITDA to unprecedented levels; an increase of XXXXX for 2007, XXXXX for 2008 and another 11
increase of XXXXX. This is an actual of a XXXXXX increase in two 12
years and XXXXXXX in three years. Why is Aquila interested in selling if it expects its’ EBITDA to more than double in three years? This alone should lend a lack of credibility to the presented numbers in The Plan. 13 14 15 16 17 18 19 20 21 22 23
EBITDA is used here to illustrate the potential for over estimated values as this increase illustrated is fairly dramatic and not previously
experienced. Also EBITDA is a good figure, from an investor’s
perspective, to use when comparing companies within the same industry leading credibility to the argument that the numbers may be overstated to stimulate greater investor interest.
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Q. PLEASE SUMMARIZE YOUR TESTIMONY
A. Staff recommends that Black Hills’ request for recovery of the acquisition premium transaction costs, and transition costs be denied based on the following:
1. Use of financial information that lacks transparency.
2. Use of a forecast method that does not enable a proper assessment of future costs and savings to be conducted and does not allow for a true-up mechanism if a difference between forecasted and actual numbers exists.
3. Use of SMJ-1 in its entirety cannot be allowed for any future request for recovery of acquisition premiums.
Q. DOES THIS CONCLUDE YOUR TESTIMONY AT THIS TIME?
APPENDIX A
STATEMENT OF QUALIFICATIONS OF
SCOTT ENGLAND
I have been employed by the Colorado Public Utilities Commission since June of 2007. Prior to my employment with the Commission I served as a lecturer for the economics department at the Colorado School of Mines and as an assistant professor of economics at California State University – Fresno and Metropolitan State College of Denver. As an assistant professor I provided many services to the community and published articles in professional journals. Some of these services include work with the Fresno Regional Jobs Initiative on ways to alleviate the chronic unemployment issue in Fresno and making presentations to various professional organizations on economic issues.
EDUCATION
Ph.D., Economics, 2002, Colorado State University, Fort Collins, CO. M.A., Economics, 1998, Colorado State University, Fort Collins, CO. B.S., Economics, 1996, Southern Oregon University, Ashland, OR. B.S., Marketing, 1996, Southern Oregon University, Ashland, OR.
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
DOCKET NO. 07A-1084EG
IN THE MATTER OF THE APPLICATION OF AQUILA, INC., DOING BUSINESS AS AQUILA NETWORKS - WPC AND AQUILA NETWORKS - PNG, BLACK HILLS CORPORATION, AQUILA COLORADO, LLC, BLACK HILLS/COLORADO UTILITY COMPANY, INC., AND BLACK HILLS/COLORADO UTILITY
COMPANY, LLC, FOR AN ORDER APPROVING THE TRANSFER OF CONTROL AND OWNERSHIP OF AQUILA'S PUBLIC UTILITY ASSETS AND BUSINESSES IN THE STATE OF COLORADO
AFFIDAVIT OF SCOTT E. ENGLAND
STAFF OF THE COLORADO PUBLIC UTILITIES COMMISSION
I, Scott R. England, being duly sworn, state that the attached testimony and exhibits were prepared by me or under my supervision, control, and direction; that the testimony and exhibits are true and correct to the best of my information, knowledge and belief; and that I would give the same testimony orally and would present the same exhibits if asked under oath.
___________________________________________
Scott E. England
Subscribed and sworn to before me in the County of , State of Colorado, this day of _____________________ 2007.
NOTARY PUBLIC My Commission expires: ___________________________
