EPC contracts frequently include a clause on the reliance of data. It has several formulations, but it usually looks something like this:

“Employer-Provided Information has been made available for reference only.

The Employer makes no warranty as to the accuracy, completeness and reliability of any information, data, statement in the Employer-Provided Information.”

The objective is clear – avoiding claims during construction if the data is wrong. In the most extreme cases even information critical to price a project (like for instance a geotechnical survey) should be considered as a “not rely upon” data.

How did we get to this point?

To give some context, the theory is that standard EPC contracts like the Silver FIDIC explicitly request to the subcontractor to study the Employer’s Requirements to find errors and omissions.

This is usually written in this way (you can find an example with the full text for instance in chapter 5 of the standard Silver FIDIC contact):

"The Contractor shall be deemed to have scrutinised, prior to the Base Date, the Employer’s Requirements (including design criteria and calculations, if any)."

But there are exceptions - in an effort to create a reasonable contract, although not as balances as the FIDIC Red or Yellow, the authors of the clause add:

"However, the Employer shall be responsible for the correctness of the following portions of the Employer’s Requirements and of the following data and information provided by (or on behalf of) the Employer:

(a) portions, data and information which are stated in the Contract as being immutable or the responsibility of the Employer;

(...)

(d) portions, data and information which cannot be verified by the Contractor, except as otherwise stated in the Contract."

In an effort to unload risks and responsibilities, Employers try to avoid being accountable for ALL information provided during the tender. Basically, the bidder cannot trust the tender documentation and should double check.

Unfortunately, in many situations bidders cannot verify independently the information provided. For instance to confirm the results of a geotechnical survey for a wind farm a bidder would have to invest thousands of dollars and one or two months of time to make a new set of boreholes and trial pits.

This is clearly unrealistic and unreasonable. Such clause, if stretched to the extreme, can have as a result extremely high prices (as the bidder will have to foresee the worst case scenario) or few bidders (as they will simply decline to bid).

I also suspect that in some situation the Employer decide not to circulate available information, probably following some twisted logic.

All in all I strongly believe that it would be in the interest of the Employer to avoid using the “not to be relied upon” clause on information like wind data, geotechnical survey, grid connection info, topographical survey, etc.

The serial defect clause is a warranty frequently requested by customers.

It belongs to a classic “tryptic” of warranties allocating risk on the turbine suppliers:

• General warranty, for defect in design, manufacturing, installation, etc.
• Power curve warranty
• Serial defect warranty

Generally speaking, a serial defect is a component defective on a significant number of turbines. If there is a certain percentage of defective components, the warranty force the turbine seller to replace it on all the turbines.

As you will imagine, the tricky part is the specific definition of the clause.

Among the key point to be defined these are specially important:

1. The definition of defect / defective.
2. The time-frame for the defect to appear. How many years?
3. The reason for the defect. Is the root cause the same? You can have for instance many blade failures caused by different problems.
4. The percentage of failures needed to declare a serial defect. Is it 10%, 20%, more?
5. The population of turbines used to calculate the percentage of failure. Only the wind turbine in the wind farm, all the turbines of the same model owned by the customer, all existing turbines of the same model?
6. Who should confirm the existence of the defect. A reasonable compromise for this point can be an independent third party.

The reason behind this clause is that such serial defects happened in the past - not only in the infancy of the wind industry, but also in more recent years when components have been replaced on massive numbers of turbines, even of Tier 1 manufacturers.

Without this clause the buyer can be left in a very uncomfortable situation where maybe he is aware of the (latent) problem but only if the components that fail during the Warranty or Service period are replaced.

Transfer of title and transfer of risk are 2 key concepts in wind farms contracts (and, presumably, in many other comparable businesses). They appear in both EPC and Supply Only agreements.

This is what they usually means:

Transfer of title (ToT): the ownership (of the entire turbine or of one of the component of the wind farm, such as the foundation) is transferred to the buyer.

Transfer of risk (ToR): risk of damages and losses is transferred to the buyer.

Although it may look counterintuitive they do not have to happen at the same point in time: for instance, an EPC contract could have transfer of title when a certain percentage of the wind turbine is paid -for instance, 80%- and transfer of risk only after commissioning (that is, the turbine is installed, tested and ready for production).

When the relevant percentage is paid is defined in the projects cash flow. In general, it could happen that the transfer of title happen many months before wind turbine installation.

The percentage of the wind turbine price to be paid to have transfer of title is usually one of the key negotiation topics. For the sake of clarity, the wind turbine seller would retain some case of security (e.g. a bank bond) until the equipment is paid in full in case the buyer stop the payments after the transfer of title.

It is worth to notice that one party (or both) might be interested in an early ToT or ToR, for instance if they are linked to revenue recognition. For instance, in some Supply Only or Supply and Install contracts revenue recognition is at ToR, so the turbine seller want to have it as soon as possible.

For a variety of reasons, it could be the buyer interested in an early ToT or ToR, possibly even before the completion of the wind farm balance of plant (basically, when the wind farm is not ready for installation). In a similar scenario the turbines would be delivered to a temporary storage area where the ToT and ToR would happen.

One more interesting point is that, in some jurisdictions, a sales tax could become applicable when the ownership of the turbines is transferred. This could be a good reason for an early or late transfer of title in a different jurisdiction.

Lately I’ve been spending some time trying to learn something more about quality. Although I see that there is no consensus on the business effectiveness of some of these technique I’ve decided to take a certification (ASQ Six Sigma Green Belt) to have a first-hand experience.

One of the first concept I’ve learnt is the difference between defect and defective. This is the standard definition in the wind industry:

“Defect” is defined as a non-conformity, a failure to comply with the Technical Specifications, a flaw in design, manufacturing, workmanship or damage.

“Defective” is defined as a part that has one or more defects and fail due to it.

The key concept here is that in principle it is possible to have one or more defect on a component without having safety or operational problems.

Wind turbines warranties (and presumably other similar equipment) usually are based in the concept of defective – that is, of failure of the component to operate correctly.

The logic is that a failure is usually a black or white concept: either the gearbox is working or it is broken.

However, seen from the perspective of the customer, this definition is not reassuring: a component could have a defect that, even if it’s not preventing the turbine to work, is making it underperforming, unreliable, deteriorating quicker than usual, etc.

Basically the concern of the customer is that the turbine seller will simply “try to keep the turbine alive” until the defect warranty expire (usually after 2 years). Afterwards, it will become a problem of the customer.

For this reason the clause with the definition of defect and defective is usually extensively negotiated. Some possible wording, from the least to the most favourable to the customer, are:

1. Defective is a part that fails due to a defect
2. Defective is a part that has a defect that could reasonably cause adverse effects on production or safety
3. Defective is a part that doesn’t match the Technical Specifications
4. Defective is a part that contain a defect

Obviously the last one is very onerous for the company who has to mantain the turbine, while the second can offer a reasonable level of protection to both parties.

Early Works, sometime also called Preliminary Works, Limited Notice To Proceed or something similar, are a common project strategy that is currently more frequent than ever before.

Basically, it means that some field works, engineering tasks and/or procurement activities are done before that the EPC contract enter into force.

EPC contracts have usually a long list of condition precedents to be fulfilled – basically things that should happen to give validity to the contract.

However, due to demanding planning and “hard” deadlines such as changes in the regulatory framework or a variety of other issues, it’s often difficult to wait for that point in time.

Additionally, negotiations can be longer than expected or problem with project finance closure are a reality in the majority of the developments.

Therefore Early Works are often the only chance to keep the project alive. Basically is a separate agreement between the customer and the contractor where both party acknowledge the situation and recognize that some tasks need to be performed immediately to keep the time schedule of the wind farm feasible.

It’s usually a “light” contract, a few pages highlighting the main terms and conditions. The content of the early works is obviously project specific.

Some activities that are frequently performed upfront are:

• Geotechnical investigations
• Foundation design
• Finalization of the internal layout
• Engineering and procurement of the main transformer

However, in the past I’ve seen a variety of tasks included in the Early Works, from the engineering of the substation to support to permitting for wind turbine transportation (in some countries authorities can be VERY slow).

I’ve also read of a wind farm in a very remote area with an Early Works package including an air runways, so as mentioned before the type of early works are dependent on the specific wind farm planning.

The Defects Notification Period (DNP) is a certain number of day counted from the date of completion of works that allow the customer to notify defects to the Contractor. In the Wind Energy business is usually 12 months, but in principle can be longer (2 years, 5 years, etc.) or shorter.

There are also situations where there are different type of DNP, shorter for not critical items and longer for critical items.

It is usually start from the certified completion of works (the day the Taking Over Certificate is issue). It is interesting to consider that the majority of contract also include a “deemed taking over” – basically a set of circumstances that constitute a “de facto” taking over.

During the Defects Notification Period the subcontractor will probably need to do some minor works to solve the problem listed in the Defects Punch List. If new problems are discovered by the customer, that the contractor is obliged to fix them.

Finally, a point worth mentioning is that the subcontractor is usually obliged to repair also defects not attributable to him (in this case he is obviously entitled to payment via Variation Order).