Catagory:Articles and Publications

1
REGULATING HEAT NETWORKS:  Energy security bill to the rescue? 
2
COVID-19: EPC AND EPCM IN LARGE CONSTRUCTION PROJECTS POST COVID-19
3
K&L GATES RECOGNIZED AS A TOP CONSTRUCTION LAW FIRM BY CONSTRUCTION EXECUTIVE
4
COVID-19: Update – What You Need to Know As New Jersey and New York Construction Projects Begin to Reopen
5
COVID-19: UK Public Sector Construction – Cabinet Office publishes Guidance Notes for PPN02/20
6
Pennsylvania Construction Amid COVID-19
7
COVID-19: UK Public Sector Construction – Cabinet Office publishes FAQs regarding PPN02/20
8
COVID-19: UK Coronavirus Act 2020 – Implications for the Construction Industry
9
COVID-19: UK Public Sector Construction – Cash Flow Relief for Suppliers
10
‘Fitness for Purpose’ and Conflicting Obligations in Offshore Wind Projects

REGULATING HEAT NETWORKS:  Energy security bill to the rescue? 

By: Ben Holland and Ruth Chang

Issues with the current heat networks regime?

Heat network customers have reported price increases of up to 700% since late 2021.

Heat networks are not currently regulated, and most customers are not covered by the energy price cap (i.e. the Ofgem price-cap does not apply).

What are heat networks?

A heat network – sometimes called district heating – is a distribution system of insulated pipes that takes heat from a central source and delivers it to a number of domestic or non-domestic buildings. There are currently around 14,000 UK heat networks and half a million customers. Heat networks can cover a large area, or even an entire city, or can be fairly local supplying a small cluster of buildings. Most of the heat networks in the UK are concentrated in England (around 86%)

There are, generally, two types of heat networks: district heating and communal heating.

How does communal heating operate?

Communal heating is the supply of heat and hot water, from a source usually known as the energy centre, to a number of customers within one building only. The energy centre often consists of a single large boiler in the basement of a building with the heat and hot water distributed through the building via a series of pipes.  

About 85% of all heat networks are communal heat networks.

How does a district heating system operate?

District heating involves a local energy centre that supplies heat and hot water to customers in more than one building. District heating networks can range in size from a few hundred metres supplying just a few homes to several kilometres of pipe supplying heat and hot water to multiple buildings in a development.

What are the advantages of heat networks?

Generally the usage of heat networks will bring about these benefits:-

  • In urban areas it is cheaper to install than individual systems in each building
  • It is more resilient to fuel price shocks or individual generation assets failures
  • Easier to decarbonise
  • Delivery of cheaper heat to the end users

Who can be a heat network supplier?

The heat network supplier is the organisation that is contracted to provide heating and/or hot water to each property. They will provide the heat supply agreement (or customer charter) to each occupant on the heat network.

Various organisations can fulfil this role.  For instance:

  • A specific heat network company (ESCO);
  • Property developer;
  • Housing Association;
  • Local authority;
  • Management company; or
  • A company set up by the freeholder to operate the heat network

There are voluntary standards intended to provide consumers with some form of protection (most notably the Heat Trust scheme, which is a non-profit consumer champion for heat networks) and some standardisation around the minimum level of service customers can expect to receive from a heat network. 

Yet, looking at it on an overall terms, heat networks remain largely unregulated and dissatisfaction towards the transparency of information, or pricing aspects, or the collection of personal data, or billing and metering issues, remain some common complaints for all heat customers.

Is the government intervening (if at all)?

The recent Energy Security Bill (“the Bill”) is one of the government’s attempts in regulating heat networks.  The Bill was introduced to Parliament on 6 July 2022, aiming to deliver on the whole a cleaner more affordable and more secure energy system.

The Bill initiates important steps towards extending Ofgem’s regulatory oversight to cover heat networks. The Bill appoints Ofgem as heat networks regulator with a view to regulating heat networks, in similar ways to other utilities, with a general aim of delivering transparent information for consumers, fair and reasonable prices, minimum technical standards and  good quality services, alongside specific measures to comply with the government’s general objectives on decarbonisation. 

The Bill also provides the BEIS Secretary of State with powers to introduce various forms of price regulation, including a price cap. It also now seeks to enable heat network zoning to identify areas where there is provision for the lowest cost solution to heating buildings.

Whilst the contents of the Bill are yet to be finalised, it is expected that the relevant regulations may come into force, as soon as the earlier part of 2024 (or towards the end of 2023). However, this timeframe may prove far too late in helping the current crisis.

COVID-19: EPC AND EPCM IN LARGE CONSTRUCTION PROJECTS POST COVID-19

Authors: Pawel Piotrowski and Nicola J. Ellis

COVID-19 has highlighted some of the existing problems in the construction market such as fragmentation, low profitability and often low satisfaction for both owners and contractors (due to time and budget overruns and lengthy claims procedures and disputes). In this article, we consider the choice of the procurement method for large construction projects and issues and risks raised by COVID-19.

EPC

Owners often procure major construction projects on a fixed price, lump sum turnkey contract whereby the contractor is responsible for all engineering, procurement and construction (EPC) aspects of the development by a specified date (subject to a limited number of circumstances which will provide the contractor with relief). Under this arrangement, the EPC contractor directly engages the supply chain and takes responsibility for building and delivering the project so that the owner simply has to ‘turn the key’. Any changes or variations that the owner may require to the original scope provided to the EPC contractor will be at the owner’s risk and therefore it is important to have a high degree of certainty and detail as to the scope of works, and often a detailed design provided by the owner to assist the EPC contractor in providing an accurate price.  

The EPC has many advantages for the owner, including that it places lower management burden on them. It provides a single point of responsibility for the project to the owner and gives the owner and any lenders a high degree of certainty as to the time and cost of the development. Since the owner has recourse against a single contractor rather than having to pursue multiple contractors and suppliers, the dispute resolution process is usually less complicated. The EPC contractor should therefore seek to pass down all main obligations from the EPC contract onto its subcontractors to mitigate its liability position.

In return for taking on a high amount of risk as to time and cost, contractors may reflect this in their pricing and may include a substantial risk premium in the contract price. Owners can mitigate this to some degree by procuring EPC contracts in competitive tenders where the lowest price is often the decisive factor. That, in turn, often results in EPC contracts carrying a risk of change orders / variations which can become very costly to the owners if agreed or potentially catastrophic to those contractors who haven’t included a sufficient risk premium when submitting a low price proposal, leading to a focus on cost control by the contractor.

In these unprecedented times, the risk of force majeure events, effects of a change in law, risk of supply chain disruptions and the risk of integrating the performance of the entire supply chain have posed a particular challenge for contractors.  As a result, contractors may become more reluctant to take on some of these risks and may seek to exclude or set parameters around their liability for such risks or owners may see tenders with higher risk premiums. 

EPCM

Where the owner wishes to retain greater control over the project, the owner may opt for an EPCM contracting structure. 

The EPCM or ‘engineering, procurement and construction management’ contract is a construction management agreement whereby the EPCM contractor is responsible for advising the client on the design and procurement of the project but also for overseeing and managing all construction and supply contracts. An EPCM contract can therefore be seen more as a professional services contract in contrast to EPC contracts which are design and construction contracts. The EPCM contractor does not perform construction work. It is the owner who directly enters into numerous contracts with various contractors and suppliers. 

EPCM has many advantages for owners, including greater flexibility allowing projects to be tailored to current conditions as owners can modify the design or procurement plan mid-project and negotiate directly with the relevant contractors or suppliers. This can mean early engagement of certain packages prior to finalising the scope of work which may result in an earlier completion date. 

The overall price of the project under an EPCM arrangement may be lower as most of the risk priced for in EPC contracts sits with the owner and the owner is able to negotiate with the supply chain itself. 

EPCM also has disadvantages. The administrative burden of the owner directly negotiating and contracting with each of the contractors or suppliers is far greater than under EPC and significant demands are placed on the owner’s skills and resources (although the EPCM contractor may be able to ease this burden). Interface risk and coordination between each contractor or supplier needs to be managed and this often sits with the owner.  Where a dispute arises, this is also more complex for the owner due to difficulties in allocating fault and risk amongst multiple contractors, rather than having a single point of responsibility as under EPC contracts.

However, from our experience, most of these disadvantages can be reduced by way of proper implementation strategy, planning, contracting and management. 

Both EPC and EPCM have advantages and disadvantages but can be beneficial when used in the right circumstances. The objectives, scope of work and risk profile should be clearly understood in choosing which method to use as the cost implications of choosing the incorrect form can be substantial for both parties. 

K&L GATES RECOGNIZED AS A TOP CONSTRUCTION LAW FIRM BY CONSTRUCTION EXECUTIVE

Construction news outlet Construction Executive has again recognized K&L Gates LLP among the top 15 firms in the publication’s rankings of the 50 leading law firms throughout the United States with dedicated construction practices.

The survey, “The Top 50 Construction Law Firms,” considered practice-specific revenue; number of lawyers in the practice; percentage of firm’s total revenues derived from its construction practice; number of states in which the firm is licensed to practice; and the year in which the construction practice was established to develop the rankings. The busiest areas of practice were also discussed; dispute resolution, construction defects, and contract documents and administration are dominating the share of legal work for firms surveyed.

K&L Gates has one of the most diverse and technically skilled construction law practices in the world, with its lawyers working with clients throughout each phase of the industry, from the early stages of finance, development, and design through implementation, construction, and project close-out. The group often partners with lawyers across practice areas such as mergers and acquisitions, labor and employment, real estate, intellectual property, and immigration to fully serve clients across the firm’s platform.

COVID-19: Update – What You Need to Know As New Jersey and New York Construction Projects Begin to Reopen

Authors: Patrick J. Perrone, Loly Garcia Tor, and Tara L. Pehush

On 13 May 2020, New Jersey and New York announced that construction in both states would resume, but projects that are reopening must adhere to detailed and specific guidance. This alert addresses the new requirements for construction operations in New Jersey and New York.

CLICK HERE to read more.

COVID-19: UK Public Sector Construction – Cabinet Office publishes Guidance Notes for PPN02/20

Author: Kiran Giblin

Further to our recent blog alerts “COVID-19: UK Public Sector Construction – Cash Flow Relief for Suppliers” and “COVID-19: UK Public Sector Construction – Cabinet Office publishes FAQs regarding PPN02/20”, the Cabinet Office has published construction sector-specific Guidance Notes to assist contracting authorities implementing PPN02/20 into existing works contracts.

Read More

Pennsylvania Construction Amid COVID-19

Authors: Richard F. Paciaroni, Justin N. Leonelli, and Reymond E. Yammine

COVID-19 has made its way into various industries throughout the world, and Pennsylvania’s construction industry is no exception. All commercial construction activities throughout the Commonwealth, with a few limited exceptions, have been halted indefinitely to assist in mitigating the ongoing spread of the coronavirus. Similarly, construction supply chains in Pennsylvania, the U.S., and abroad have either limited supply or halted material production altogether, which may result in severe construction delays throughout Pennsylvania once construction projects are cleared to continue. Given the current (and likely ongoing) state of flux faced by Pennsylvania’s construction professionals, it is important that contractors familiarize themselves with the state-specific legal concepts currently at play and consider practical efforts to help curtail the economic impact of COVID-19.

CLICK HERE to read the full alert.

COVID-19: UK Public Sector Construction – Cabinet Office publishes FAQs regarding PPN02/20

Authors: Matthew E. Smith, Inga K. Hall, Kiran Giblin

Further to our recent blog post “COVID-19: UK Public Sector Construction – cash flow relief for suppliers” on 31 March 2020, in which we set out guidance on the Government’s Procurement Policy Note – Supplier relief due to COVID-19 PPN 02/20 (“PPN02/20”), the Cabinet Office has published a FAQs note providing further clarity and guidance regarding implementation of PPN02/20 in practice.

The 17 initial questions addressed in this FAQ note range across providing definitional clarity on terms used, further detail on how to make use of the Model Interim Payment Terms also published, the extent to which suppliers can also make use of other relief, such as via the Coronavirus Job Retention Scheme, and employers’ rights in terms of repayment, continued discharge of obligations, protection from double payments and the preservation of other contractual rights and remedies.

To read the full alert, please click here.

COVID-19: UK Coronavirus Act 2020 – Implications for the Construction Industry

 Authors: Inga K. Hall, Saya Lee

The 359-page emergency Coronavirus Bill received royal assent on 25 March 2020. This newly passed Coronavirus Act 2020 (the “Act”) contains extensive powers and additional measures to equip the UK government and other authorities to better respond to the COVID-19 outbreak in the UK. The new Act is time-limited to two years by a sunset clause (Section 89) and will be subject to six-month parliamentary reviews (Section 98)

The Act is primarily aimed at easing the burden on the frontline staff working for ‘essential services’ including the NHS, schools, police and courts, as well as providing measures for containing and slowing the spread of the virus and supporting businesses and workers. Although there are no sections in the Act specifically addressing the construction industry, the wide-ranging powers that are granted to the authorities to enable such actions and outcomes also have the potential to have an impact on the construction industry as summarised below.

For the full alert, please click here.

COVID-19: UK Public Sector Construction – Cash Flow Relief for Suppliers

 Authors: Daniel T. Lopez de ArroyabeInga K. HallKevin Greene

The impact of COVID-19 on the construction industry has been the subject of much debate this week, as discussed in our blog article “COVID-19 Construction Industry – Operating in a Pandemic”, with businesses split over whether or not to shut down operations in order to protect the health and safety of those working on construction sites. The division has been exacerbated by the lack of a clear Government directive either way, meaning that it has – for the time being at least – been left in the hands of individual companies to decide whether or not to stop work.

While that issue continues to divide opinion, what is clear is that the pandemic and the fall-out from it will place an unprecedented strain on supply chains, and one of the main challenges currently faced by the industry is how to maintain cash flow so that businesses are able to survive and continue working once we emerge through the other side. In this regard the Government has taken steps to provide further clarity and guidance, with the publication on 20 March of Procurement Policy Note – Supplier relief due to COVID-19 PPN 02/20 (“PPN02/20”).

Taking immediate effect until 30 June 2020, PPN02/20 applies to all contracting authorities (including central government departments, executive agencies, non-departmental public bodies, local authorities and NHS bodies) and covers goods, services and works contracts being delivered in the UK.

To read the full alert, please click here.

‘Fitness for Purpose’ and Conflicting Obligations in Offshore Wind Projects

Authors: Charles Lockwood and Owen Chio

Two recent cases in the UK illustrate the tricky issues Employers and Contractors have to grapple with in defining the responsibilities of contractors involved in the construction of offshore wind projects.

There are no established standard form contracts for offshore wind farm projects. The standard forms that are often adapted for this purpose include traditional offshore forms used in the oil and gas industry such as the LOGIC forms and standard engineering contracts more commonly used for onshore projects such as FIDIC, particularly the FIDIC Yellow Book.

Neither form is ideally suited for use in the offshore wind industry and they are often heavily amended, particularly in relation to design obligations. The cases summarized below illustrate some of the tensions that can arise, particularly in relation to design and fabrication of monopiles and transition pieces and requirements that they should be fit for their intended purpose.

To read the full alert, please click here.

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