The Owner's demands vs the Contract
| Notice demand | Contractual basis? | iEnergia position |
|---|---|---|
| (i) Investigate the damaged PV panels + written report | PARTIAL — investigation duty presumes a "Defect"; none established | Exceeded anyway — iEnergia opened the investigation itself on 22 May, 6 weeks before the Notice |
| (ii) Investigate tracker malfunction + written report | PARTIAL — same caveat | Exceeded — torsion hypothesis formulated by iEnergia; Arctech pressed to a written engineering conclusion (28 Jun) |
| (iii) Remedial & corrective plan for Owner approval | NO — premature before cause established | Conditional on RCA outcome; inverts the "Defect" definition |
| (iv) Remedy all defects at Contractor's own risk and cost under Cl. 14.1 | NO for modules — Cl. 14.7 excludes them; NO for trackers absent a Contractor failure | Declined; no Defect within the contractual meaning has been established |
| (v) Manage/activate manufacturer warranty claims | YES — Cl. 14.6 / Sch. C-8 | Already being performed since 22 May — the only demand with a basis is the one already satisfied |
| Reserve right to call bank bonds + liquidated damages | NO FOUNDATION — no Defect, no quantified loss, Notice non-compliant with Cl. 14.1(b) | Would be contested |
Six gaps in the Owner's position
1 — The Notice is out of time under its own clause
Cl. 14.1(b): instruction within 5 Business Days of awareness. The Owner's representative documented the defect in writing on 26 May (site visit ≈ mid-May); the Owner attended the joint technical meeting of 26 May; the Notice is dated 6 July. ≈ Six weeks.
2 — No evidence, despite promising it
The Notice states "Attached to this letter you will find evidence so far available to us including photographs and data" — no annex was delivered. Cl. 14.1(b)(i) requires "reasonable evidence". The Notice also specifies no correction time (14.1(b)(iii)).
3 — It demands what Clause 14.7 excludes
The Notice concedes Cl. 14.7 (no Contractor warranty for PV modules), then re-imports module damage via "defective design or engineering". The bridge requires a Contractor design failure — none is alleged with particularity, and no Contractor engineering deliverable is implicated. The damage is to module glass and tracker behaviour, not to iEnergia's civil, cabling or electrical BOP design.
4 — The "design and engineering" it attacks was the Owner's own
Schedule C-7 (the Owner's template) specifies both products; the Technical Alignment record shows PowerTree + Arctech + AFRY engineering the system from Nov 2023 with piles in production by Jan 2024 — pre-EPC, without iEnergia. Any argument that the specification was technically deficient is an argument against the Owner's own documents (compare Schedule A-7's broken cross-reference to "C-9").
5 — Asymmetry of disclosure
iEnergia shared everything with all parties (evidence pack, 10 Jun). The Owner: parallel channel with Arctech (24 May), undisclosed expert inspection (11 Jun — identity and findings never shared), direct Trina claim since ≥26 May with nothing shared, and a Notice whose evidence annex never arrived.
6 — Internal inconsistencies in the Notice itself
- Email subject says "Contractor´s Breach"; the signed letter says "Technical Defect" — "breach" appears nowhere in the document.
- Signed 8 July; delivered 15 July — a 7-day delay from a party demanding "prompt" action.
- Demands a remediation plan before any cause is established.
Gaps in our own position — flagged, not hidden
A Clause 2.15 exposure
The Contractor is solely liable for technical errors in the Owner's Schedules C-1..C-10 it failed to identify (Cl. 2.15(a)(i)), and "assumes full responsibility for the design of the whole of the Works including any design included in the Owner's Requirements" (Cl. 2.5(b)). The Notice quotes this framework nearly verbatim. Mitigations: Cl. 14.7 is unconditional; product selection is procurement, not a documentary "technical error"; no iEnergia deliverable is implicated; and iEnergia's written error notifications of June 2024 engage Cl. 2.15(c). The strongest possible mitigation — a written module format/size concern — remains unsourced.
B The module format/size record does not (yet) exist
An internal draft asserts the Contractor "expressly raised concerns during the Project regarding the format and size of the modules selected by the Owner". Full mailbox + Dropbox searches found no such record; the only format/size discussion (short purlin, 1400 mm hole spacing, rivet fasteners) was raised by the Owner's representative in May 2026. Until a source is produced this sentence must not appear in any external document. A false citation here would hand the Owner a credibility win.
C Unverified assertions to keep out of correspondence until confirmed
- "Projects were commissioned by the tracker manufacturer and warranties were properly given" — plausible, but not verified plant-by-plant for this portfolio.
- Punch lists of the four non-Angol plants (verified to first-3-pages depth only; Angol verified in full).
- Only the Angol Notice has actually been received and read — the other four are assumed equivalent.
Obligations met or exceeded — the affirmative record
| Obligation | Status | Evidence |
|---|---|---|
| Manufacturer warranty management (Cl. 14.6) | EXCEEDED | 4 written approaches to Arctech (22 May–23 Jun); Trina visit requested 22 May; evidence pack 10 Jun |
| Defect investigation | EXCEEDED | Self-initiated 6 weeks pre-Notice; portfolio-wide written report 26 May |
| Duty to notify errors in Owner documentation (Cl. 2.15(c)) | PERFORMED | Drawing/pile-distribution queries 4 Jun 2024; torque-tube error notification 28 Jun 2024 |
| Transparency | EXCEEDED | Full evidence shared with Owner, Arctech and Trina — including Arctech's precedents |