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A lesson from RCR Tomlinson: corporate PPA’s and the sharing of risk

RCR Tomlinson entering voluntary administration this week has been a major eye-opener in the renewable energy world. The engineering firm had shown signs of stress earlier in the year, particularly when it was forced to record a $57 million write-down on the value of it’s Daydream and Hayman solar farms in Queensland. Following this, the company successfully went to market and raised an additional $100 million in capital. Now after incurring liquidated damages as a result of running late on solar projects, directors had no choice but to put the company into administration.

In the renewable energy space, these events particularly emphasise the potential risk of entering into a PPA with a project that requires development prior to receiving any MWh. For those considering entering into a renewable PPA, it is imperative to be mindful of the gravity of the project risk taken with these developments. With increasingly stringent connection criteria being enforced by AEMO and transmission companies, corporate PPA off-takers need to consider the structuring of risk in the PPA to avoid being exposed in situations like this.

There are several ways to manage project risk through legal and commercial arrangements. Without being privy to the details of RCR Tomlinson’s contracts, it would appear that the company was wearing “connection to the grid” risk. On face value, this would have felt like a win to the off-taker. However, the off-takers are now in a position where the risk has fallen onto them due the collapse of the company. Whilst RCR Tomlinson shouldn’t have taken that risk, the PPA counterparties arguably also should not have turned a blind eye to the potential project risk.

This is an important lesson for any corporate entity looking to enter into a PPA, by understanding whether your developer and construction partners have the appropriate means to manage the risk that is placed on them. Having liquidated damages in a contract is essential. However, be mindful that at the end of the day, if a company is placed into administration and subsequently liquidated, liquidated damages are worthless.