This text explores sensible steps a photo voltaic array proprietor or operator can take now to raised place itself to make warranty-related claims 5, 10 and even 25 years into the long run. The following tips are based mostly on my expertise over the previous yr, throughout which I’ve dealt with two photo voltaic disputes — one which culminated in a two-week trial and one other that required a two-week remaining arbitration listening to. One dispute involved the modules themselves; the opposite concerned the photo voltaic monitoring system. Regardless of the totally different applied sciences concerned, there was numerous overlap within the defendants’ litigation methods, and the identical sensible classes will be drawn from each.
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The warranties related to photo voltaic modules are unusually lengthy — 25 years is customary, and extra producers are beginning to provide 30-year warranties. Twenty-five years is an eternity with regards to technological developments, and it’s virtually inevitable {that a} sure variety of photo voltaic arrays received’t carry out as warranted for the anticipated lifespan.
Given the numerous stretch of time forward, there are steps system homeowners ought to take now to raised place themselves for potential disputes sooner or later. The primary is straightforward: Learn the guarantee exclusions. When producers face guarantee claims, they’ve two sensible choices: 1) honor the guarantee; or 2) blame every part apart from the warranted product for the issue. The latter strategy was the playbook utilized by each producers within the disputes referenced. The frequent chorus we heard repeatedly was alongside the traces of “it was your operation or upkeep of the product that was at fault,” and “it was surprising climate,” and “it was all the different elements of the system.”
Past studying (and negotiating) guarantee exclusions fastidiously, to raised place oneself for future guarantee claims, system homeowners additionally want to prepare their important documentation. This implies not solely the contract, but additionally all reveals to the contract, plus any proposals, buy orders or paperwork referenced within the contract even when not particularly made an exhibit. Double test that the paperwork simply described embrace the guarantee itself. Past contractual paperwork, design and development paperwork are the following almost certainly to be wanted — so be certain that these are properly organized and simply accessible.
One step past being organized, system homeowners also needs to overview the O&M plan. Skilled operators may need an awesome plan in place already, but when it doesn’t think about the particular necessities from the module producer, that hole between what one sometimes does and what that producer recommends would possibly properly be a legit foundation for a denied guarantee declare. And past merely having an O&M plan or handbook in place, it’s necessary to doc that the plan is definitely being carried out — be certain that, for instance, that if a producer recommends yearly re-torquing of bolts on the slew drive, not solely is re-torquing performed, but it surely’s additionally documented as being accomplished on schedule and in keeping with the producer’s specs.
Good documentation is important past its means to assist system homeowners perceive their rights and the guarantee procedures or permit them to defeat producer arguments based mostly on guarantee exclusions — it additionally helps mitigate the results of inevitable worker turnover and the passage of time. Recollections fade, and key operations and upkeep personnel might transfer on or retire. These claims might occur many years sooner or later, and having good data is much simpler than finding long-lost staff who haven’t retained this necessary info.
All operational knowledge must be saved in applicable information for later use. As a result of one doesn’t know the way they’ll want it or what little bit of proof might be wanted to show or disprove a declare, system homeowners ought to save knowledge in a format the place it may well nonetheless be put to good use, because it might make or break a future declare.
Different concerns:
- Plan to pursue guarantee claims as rapidly as potential. Clearly, it will must be performed whereas nonetheless following any mandated guarantee procedures and never spoliating any proof, however a producer that unnecessarily delays and asks for an increasing number of info to “higher assess this declare” is unlikely to do an about-face and honor the guarantee declare many months into the method. They both worth their buyer and need extra enterprise sooner or later (and can due to this fact meaningfully assess and honor legitimate guarantee claims) or they don’t.
- What are the warranties on all the important thing programs? Do the modules, monitoring system and inverters all have totally different size warranties? In the event that they don’t all have the identical guarantee length, has this been appropriately priced into O&M budgets?
- Who really holds the guarantee? Did the EPC contractor buy every part? Has the guarantee been appropriately assigned, or will the EPC contractor stand within the footwear of the producer? Injecting extra events into the method goes to make issues worse — significantly if the treatments obtainable to the proprietor will not be completely back-to-back.
If readers take away something from studying this text, please bear in mind simply how lengthy a 25-year guarantee will final. This creator, at present father to a few children below eight, is not going to solely be an empty nester but additionally probably a grandfather by the point right this moment’s new warranties expire. So, all system homeowners ought to take a while now to arrange, or they may need to forego a legit guarantee declare as an alternative of changing malfunctioning or in any other case underperforming tools.
Todd Heffner is a seasoned litigator centered on serving shoppers within the development trade, significantly in high-stakes federal court docket litigation and arbitration. Todd devotes his apply to litigating high-stakes development claims and advising shoppers through the course of development. He has labored on a variety of initiatives, together with chemical crops, energy crops, airports, navy bases, water remedy crops, environmental initiatives, hospitals, rail initiatives, excessive rises, and quite a lot of different business and industrial initiatives. Todd is especially skilled with renewable vitality initiatives, having litigated 4 photo voltaic and two wind disputes. Moreover, he prevented litigation on a battery storage undertaking by advising on a development dispute.
