(S) HONDURAN FUEL BID COULD SUPPORT FMLN, LEAD TO

S E C R E T SECTION 01 OF 06 TEGUCIGALPA 002136 SIPDIS SIPDIS NOFORN STATE FOR EB/ESC, WHA/EPSC, WHA/PPC, EB/CBA, AND WHA/CEN STATE FOR D, E, P, AND WHA TREASURY FOR AFAIBISHENKO STATE PASS AID FOR LAC/CAM NSC FOR DAN FISK COMMERCE FOR MSELIGMAN STATE PASS USTR FOR AMALITO E.O. 12958: DECL: 11/09/2036 TAGS: EPET EINV BBSR ES VE HO SUBJECT: (S) HONDURAN FUEL BID COULD SUPPORT FMLN, LEAD TO EXPROPRIATIONS, AND PIT U.S. FIRMS AGAINST EACH OTHER REF: TEGU 2048 AND PREVIOUS Classified By: DCM James Williard for reasons 1.4 (b) and (d) ¶1. (S/NF) Summary: This cable presents Post's best assessment of the current state of play and the political intent behind recent and upcoming steps in the bid solicitation process for fuel imports into Honduras. Among potential pitfalls are: (a) the threatened expropriation of millions of dollars of U.S. investor assets and the possible stranding of millions of dollars of additional assets; (b) the possibility that the winning firm could, wittingly or not, become an instrument for influencing upcoming Salvadoran elections; (c) the possibility that if a U.S. firm makes the short list and requests advocacy support, the USG could find competing U.S. firms both being prejudiced by the bid process and potentially benefiting from it; and (d) if the bid solicitation process is vacated by the GOH for any reason, the door could be opened to explicit or veiled deals with Venezuela's PDVSA. There is a relative calm on this issue at the moment, as the GOH plots its next move. The USG should take advantage of this pause to do likewise. As this cable makes clear, there are several possible evolutions to this process, many of which would present the USG with difficult challenges. End Summary. ¶2. (S/NF) As reported septel, On November 1 the GOH accepted faxed expressions of interest from 15 companies interested in supplying fuel to Honduras under the fuel bid solicitation. Post has reported (ref A) on this bid process extensively. Two of the companies were subsequently excluded from the process for incomplete bid submissions, leaving 13 known participants. Technical review of those bids is ongoing, and few details are publicly available. From publicly available accounts, it appears that four U.S. firms have submitted bids. These firms include Conoco Phillips, West Port Petroleum, Atlantic Trading, and Luis Dreyfus Petroleum. The GOH has ten working days to complete its technical review of potential bidders, and create a short list of bidders who will be invited to improve their offers. ¶3. (S/NF) It is vital that the USG use this short window of time to better understand and prepare for the possible implications and complications posed by this process moving forward. This cable presents Post's best assessment of the current state of play and the political intent behind recent and upcoming steps in the bid solicitation process. Among potential pitfalls are: (a) the threatened expropriation of millions of dollars of U.S. investor assets and the possible stranding of millions of dollars of additional assets; (b) the possibility that the winning firm in the bid solicitation could be Dutch firm Trafigura, which has existing ties to left-leaning officials in both Nicaragua and El Salvador and could therefore wittingly or not become an instrument for influencing upcoming Salvadoran elections; (c) the possibility that if a U.S. firm makes the short list and requests advocacy support, the USG could find competing U.S. firms both being prejudiced by the bid process and potentially benefiting from it; and (d) if the bid solicitation process is vacated by the GOH for any reason, the door could be opened to explicit or veiled deals with Venezuela's PDVSA. Let's examine each of these issues briefly. -------------- The Possible Coming Expropriation -------------- ¶4. (S/NF) A longstanding and still unresolved problem faced by the GOH involves storage and offloading facilities. For the GOH plan to nationalize and monopolize fuel imports to work, the GOH must have sufficient infrastructure available. At present they do not. They have therefore pressed several times for U.S. firms Esso and Texaco (the owners of a significant percentage of Honduran fuel storage capacity) to TEGUCIGALP 00002136 002 OF 006 agree to allow the winner of the bid solicitation to use those facilities. Esso and Texaco each declined to participate in the bid solicitation, and each has declined to allow third parties to use its storage facilities, citing legal and safety concerns and noting that they intend to continue using those facilities themselves for their own imports. The GOH has recently again hardened its rhetoric, emphasizing both that the U.S. firms will not be permitted to continue importing, and that if necessary the GOH could compel use of the facilities. ¶5. (S/NF) This raises at least three potential property rights issues of which Post is aware: First, these firms currently enjoy import access to the Honduran market, and have spent decades establishing multi-million dollar enterprises here. The GOH threatens to close that market, monopolize imports, and rescind these firms' right to import fuels. This clearly violates the spirit of CAFTA, in that it closes the market and decreases competition. It also might constitute a taking by force by the GOH of an existing commercial right, with the effect of causing harm to U.S. investors. ¶6. (S/NF) Second, while the GOH has denied any intent to expropriate U.S. firms' storage facilities, they have continually threatened to compel their use if and when a bid winner is identified. A seizure or compelled use of these facilities would raise the question of expropriation, and could easily lead to international lawsuits or invocation of existing bilateral investment treaties. Even if the GOH does not use these facilities, merely rescinding the firms' right to import has the effect of stranding the assets, potentially another ground for legal action by the firms. ¶7. (S/NF) Third, these companies have invested tens of millions of dollars in downstream infrastructure (gasoline stations, for example),an investment that is predicated on repayment via long-term contracts to market their brand of gasoline. The GOH threatens to allow service stations to abrogate these contracts, again potentially causing significant financial harm to U.S. investors. Similarly, denying the firms the right to import would cause breech of contract with suppliers, and could force the firms to breech their own contracts with their clients. In other words, if they are prohibited from importing, they cannot supply their stations, and would therefore be in breech. Worse, they would then be publicly pilloried by the GOH for leaving Honduras "unsupplied" with a vital economic commodity, thus "proving" that the U.S. firms were never really reliable partners. (Note that in 80 years, even during the worst times after Hurricane Mitch, these U.S. firms never once failed to supply Honduras with fuel. Dangerously low supply situations have always been handled by swapping with other importers, a situation that would be almost impossible once the firms are forced to give up their supply networks under the new system the GOH seeks to establish. End note.) -------------- -------------- Could the Bid be Used to Sway Salvadoran Elections? -------------- -------------- ¶8. (S/NF) There are credible reports of Dutch firm Trafigura negotiating contracts with left-leaning mayors in Nicaragua and El Salvador. Trafigura is believed to maintain good relations with Venezuela, and it is Post assessment that these actions are likely motivated more by profits than by politics on the part of Trafigura. Nevertheless, to the extent Venezuela is party to any preferential deals with Trafigura, such support for FMLN and FSLN mayors fits the Chavez agenda of expanding leftist populism in the region. Glencore (former employer of the founders of Trafigura) is also the largest supplier of bunker fuel for electricity generation in Honduras, and manages fuel imports for the Nicaraguan petroleum company. It is unclear if Glencore and Trafigura maintain any business ties (though both have spotty TEGUCIGALP 00002136 003 OF 006 records that include accusations of embargo busting, bribery, and causing environmental damages.) ¶9. (S/NF) It was clear in the run-up to the recent Nicaraguan elections that Venezuelan President Hugo Chavez intended to use his petrodiplomacy to support FMLN candidates in Nicaragua. It is unclear to what extent he succeeded, in part due to a lack of delivery infrastructure. (For example, a 250,000 gallon delivery faltered in October, when only 60,000 gallons could be delivered, leading Nicaraguan bus companies to reject the delivery and embarrassing Venezuela.) Similar reported deals with Salvadoran FSLN mayors suggest Chavez is following the same strategy in preparation for the upcoming Salvadoran elections. To succeed, Chavez would need to overcome the infrastructural obstacles that hampered his Nicaraguan efforts. ¶10. (S/NF) Once again, Trafigura enters the picture. Credible reports indicate that Trafigura has agreed to purchase 50 percent of Honduran gasoline marketer DIPPSA. In addition to 108 gas stations, DIPPSA also owns offloading and storage facilities in Tela (on the Atlantic coast) and in San Lorenzo (on the Pacific coast, within an easy drive of both Nicaragua and Salvador). If Trafigura were to win, it could supply the storage, distribution and marketing (through its regional chain of PUMA gas stations) for Venezuelan product. Trafigura would be enticed by such a deal, since it would dramatically expand its footprint in the region and better position it to dominate the market, whether the market were liberalized in the future or not. For its own political reasons, PDVSA and the GOV could use Trafigura/PUMA/DIPPSA as its agent to deliver the products intended perhaps to sway the elections. (Note: Trafigura, through its Copensa subsidiary, also has over 600 thousand barrels of storage capacity in Puerto Barrios, Guatemala, but it,s on the wrong coast and industry experts assess that it would be cost prohibitive to transport from there to El Salvador. End Note). ¶11. (S/NF) For its part, the GOH would support such an outcome for several reasons: the leftist ideologues surrounding President Zelaya (Patricia Rodas, Milton Jimenez, Enrique Flores Lanza, and others) would support the deal because it propels a shift leftward in regional politics. Others in the administration might support the plan as a popular domestic political move that improves the Liberal party's chances for victory in 2009. Others (including activist Juliette Handal) would support the deal because they continue to hold the misguided belief that nationalized markets are more efficient and deliver cheaper prices than competitive ones, and would see success in this bid solicitation as vindication (and possible fodder for their own political aspirations). Finally, some in and out of the Honduran government are almost certainly angling for an illicit percentage of what could be a nearly USD 1 billion contract. ¶12. (S/NF) Such an outcome damages USG interests in at least two significant ways; first, it potentially shifts the balance of regional power towards Chavez and to the left more generally, especially if he is successful in influencing the Salvadoran election. Second, by appearing to lend legitimacy to a deeply flawed concept, anything that could be portrayed as success in this fuel solicitation undermines support for competitive markets and free trade. That in turn potentially threatens U.S. investments elsewhere in the hemisphere, and also diminishes already waning support for regional trade liberalization treaties. In its worst manifestations, such an outcome could be used to buttress attacks on "neoliberalism" and democratic reforms more broadly, further contributing to the growing public disaffection for democratic institutions already being seen throughout Latin America. -------------- TEGUCIGALP 00002136 004 OF 006 Why Winning Could Be Worse Than Losing -------------- ¶13. (S/NF) Let us imagine an entirely different scenario for a moment: What if a U.S. firm wins the bid solicitation? Conoco in particular has made what appears on the surface to be a very attractive offer. If they are short-listed (or win outright),their new contract will come directly into conflict with the rights of existing investors Esso and Texaco. This could expose Conoco to lawsuits from these firms on the one side, or failure to comply with the terms of its bid on the other. Post is convinced the bid solicitation is illegitimate and ill-advised. But could the USG come out against the process if a U.S. firm wins? That would be tantamount to vetoing a one billion dollar contract. On the other hand, how could the USG possibly support, say, Conoco if the process itself could lead to the significant financial damages outlined above for Esso and Texaco? (Comment: The low Conoco offer is puzzling, given the potential conflicts with Esso and Texaco. That said, Conoco works closely with Texaco in a number of joint ventures and Post doesn,t rule out the possibility that they are working together in some fashion. End Comment). ¶14. (S/NF) Generally, the USG takes a neutral stance in advocacy cases where U.S. interests are arrayed on both sides. In this instance, however, such a comfortably neutral stance is not tenable, because it would amount to an endorsement of an otherwise illegitimate process. Worse, it might be read (correctly) by the GOH and others as the USG tying its own hands, rendering itself unable to influence the flow of events that might by then be trending in a direction that favors Chavez and a resurgent left in the region. ¶15. (S/NF) For the time being, Post favors a two-pronged message: First, the rights of existing investors must be respected. We support liberalization, not monopolization; opening of markets rather than closing them off; and increasing competition rather than reducing it. Any de facto or de jure expropriation of existing rights or capital investments would have dire consequences, to include hefty demands for compensation. Second, we continue to press for a fully transparent solicitation process, carried out according to accepted international standards and under market conditions. This message will work well enough in the short term, as we doubt the GOH is prepared to meet each of these conditions. Then, once a short list comes out, if there are no U.S. firms on it, we can continue to vigorously defend existing investment. But, what to do if a U.S. firm wins the bid? -------------- What If It All Falls Apart? What's Plan B? -------------- ¶16. (S/NF) There is yet another scenario, equally disturbing in its way: what if the GOH follows the process to its finale, only to see it end in complete chaos? Based on his performance in other political conflicts he has engaged in (the taxi strike, the teacher's strike, to name two) it would certainly be in keeping with President Zelaya's style to allow events to force a crisis rather than for him to intervene and demonstrate political leadership. If that were to happen in this case, what is our Plan B? What is his? ¶17. (S/NF) In an ideal world, Zelaya would allow the failure of this process to emasculate his opponents, proving to the Honduran public in the only way remaining to him that the plan cannot work: by letting it fail, publicly and dramatically. A stronger leader could use such an occasion to thoroughly discredit his political opponents, rid himself of many of the ideologues still stuck in a rose-colored past, and open a political space for genuine reform leading to market liberalization. Post assesses that there is almost no likelihood Zelaya has such a strategy in mind. Given several TEGUCIGALP 00002136 005 OF 006 opportunities to marginalize opponents like Juliette Handal he has not done so, and in fact in his recent remarks he has returned to a restrained but still notably antagonistic stance towards the international oil companies (IOCs). For example, Zelaya took time to phone-in an interview from Mexico during his visit there in late October, during which he accused the IOCs of boycotting and sabotaging the solicitation effort. (At that time the GOH concern was that no one would bid. Zelaya was clearly preparing to blame the IOCs if that were to happen. In the event, there were several bidders, including U.S. firms. This inoculates us against the charge of boycotting the process, but his leveling the charge nonetheless illustrates Zelaya's continuing populist stance.) ¶18. (S/NF) Post is quietly working with several actors, notably including the World Bank, to formulate a viable Plan B that would set the stage for market liberalization. Early indications are that the private sector and the donor community would support such a dialogue. Work has been started on this effort already by the World Bank, and the GOH has on several occasions paid at least lip-service to the goal of market liberalization. We are not overly optimistic about the chances such a plan will be warmly embraced by Zelaya, but we intend to have a viable fall-back on hand in the event the bid solicitation self-destructs. It is our hope that if reasoning cannot convince Zelaya to liberalize, perhaps circumstance will do so. ¶19. (S/NF) Does the GOH have a Plan B of its own? A series of GOH missteps (such as failing to check the bid document for CAFTA compliance until prodded to do so, and failing to ensure the bid process meets applicable Honduran law) lead us to suspect the GOH has not thought this process through that thoroughly. A very few powerful actors are each pursuing this plan for their own reasons, but none appears to have carefully analyzed the economic and legal ramifications of what they are proposing, much less outlined alternatives. That said, several officials, particularly Minister Enrique Flores Lanza, have hinted several times that the GOH is prepared if necessary to declare the entire process a failure. In recent meetings with Zelaya and Flores Lanza, Ambassador and DCM noted a distinct lightening of mood, and a surprisingly casual acceptance of the possibility that this year-long saga could end in failure. Which prompts us to ask: what do they have up their sleeves? ¶20. (S/NF) Flores Lanza is both a lawyer and an ideologue, and combines the worst traits of each. He is intelligent and devious, but at times apparently invulnerable to reason. He is believed by Post to have been one of the architects of the original move to use a PetroCaribe facility to supply Honduras with fuel, both because it would bring Honduras into a Chavista orbit, and because it could potentially provide hundreds of millions of dollars per year to ensure Liberal party dominance for years to come. Post assesses that its efforts were instrumental in impeding that deal. The most likely explanation for Flores Lanza's acceptance of a bid failure is that he sees that as another bite at the PetroCaribe apple. If a bid solicitation mechanism were to fail -- particularly if that failure could be blamed on the IOCs and/or the USG -- the GOH could potentially use that as justification for simply dropping the pretence and approaching Venezuela directly. A more subtle method might make use of Trafigura, veiling any Venezuela connection behind a veneer of market respectability. -------------- Comment -------------- ¶21. (S/NF) Comment: There is a relative calm on this issue at the moment, as the GOH plots its next move. The USG should take advantage of this pause to do likewise. As this cable makes clear, there are several possible evolutions to this TEGUCIGALP 00002136 006 OF 006 process, many of which would present the USG with difficult challenges. How can the USG protect existing investors and champion free markets, while impeding any efforts by Venezuela or its sympathizers to interfere with the upcoming Salvadoran elections or the regional political context in general? For tactical reasons, Post has kept a low profile for the last few weeks, letting the process unspool. But once the short list is announced, whether the process succeeds or fails, the USG could be called upon to maneuver with speed and agility in some very treacherous waters. ¶22. (S/NF) Comment continued: Post is still attempting to ascertain the motivations for and seriousness of Conoco's bid. Post has been in contact with EB/ESC to request their support in contacting Conoco representatives in Washington for any additional information they might be willing to provide. Several possible explanations for thier bid appear possible: 1) Conoco was talked into making a bid by someone involved in the process, but isn't really serious; 2) Conoco could be working quietly with Texaco and might have made separate arrangements for fuel storage, similar to the kind of arrangement Post suspects Trafigura has made with DIPPSA; or 3) Conoco could be making a strong move into the market -- perhaps based on placing higher sulfur content fuel that can not be sold in the U.S., or perhaps based on other strategic considerations. Post will continue to watch this issue closely, and would welcome any insights Washington-based agencies could provide. End Comment. Ford FORD