Power Play | Episode 3 | Defending Defects
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In this episode of the Powerplay podcast, Dan Cashmore and Danielle Griffiths explore the critical issue of defects and performance issues in renewable energy assets, emphasizing their impact on project value, regulatory compliance, and safety. The discussion covers the lifecycle stages—construction, commissioning, and operation—where defects can emerge, and how contractual frameworks govern the identification, notification, and resolution of these issues. Key topics include the importance of defect liability periods, the distinction between construction-phase and post-completion defects, and the legal and commercial implications of failing to properly notify or address defects. The hosts stress the necessity of early technical and legal intervention, proper notice compliance, and protecting contractual rights throughout investigations. They also highlight the role of performance testing, liquidated damages, expert determination, and limitation periods in managing disputes. The episode concludes with actionable takeaways: strictly adhere to notice provisions, seek technical and legal advice early, preserve all rights during investigations, and consider expert determination to resolve deadlocks. The overall tone is constructive and practical, offering clear guidance for asset owners and operators navigating the complexities of renewable infrastructure risks. The episode underscores the importance of balancing commercial urgency with contractual diligence to safeguard long-term asset performance and financial viability.
Always comply strictly with notice provisions in contracts to preserve defect claims.
Engage technical experts early to identify root causes and assign responsibility for defects.
Protect all contractual rights during investigations by putting relevant parties and insurers on notice.
Be cautious about issuing final acceptance certificates if known defects remain unresolved.
Leverage expert determination to break deadlocks on performance or defect disputes.
…and 3 more takeaways available in PodZeus
Introduction to Defects in Renewable Assets
Dan Cashmore introduces the episode's focus on defects in renewable energy assets, setting the stage for a discussion on risk management throughout the asset lifecycle from a legal and commercial perspective.
Defining Defects and Their Financial Impact
Danielle Griffiths defines defects in the context of renewable assets, explaining how they affect performance, revenue, regulatory compliance, and safety, and why asset owners must prioritize their resolution.
Defects During Construction and the Liability Period
“It's kind of useful, but I'd say critical to ensure that a full review of any potential defects is carried out before the end of that defects liability period to ensure there's enough time to notify everything that needs to be fixed.”
Latent Defects and Post-Warranty Remedies
“If a contractor doesn't come back and fix a defect that's identified outside of a defect liability period, the employer or owner's recourse is to have that defect rectified by a third party and then to seek to recover the cost of doing so as damages from the contractor.”
Performance Testing, Acceptance, and Final Tips
“Early legal involvement can really be the difference between making good a defects claim or not.”
“Early legal involvement can really be the difference between making good a defects claim or not.”
“If a contractor doesn't come back and fix a defect that's identified outside of a defect liability period, the employer or owner's recourse is to have that defect rectified by a third party and then to seek to recover the cost of doing so as damages from the contractor.”
“It's kind of useful, but I'd say critical to ensure that a full review of any potential defects is carried out before the end of that defects liability period to ensure there's enough time to notify everything that needs to be fixed.”
Host
Guest
Danielle Griffiths
person
Dan Cashmore
person
Defect Liability Period
other
Liquidated Damages
other
EPC Contractor
organization
Final Acceptance Certificate
other
Expert Determination
other
O&M Contractor
organization
Osborne Clarke
organization
Statutory Limitation Period
other
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