Thursday, 15 October 2009

Contract Clauses In EPC Oil And Gas Projects: A Case Study Of The Pearl Development Project

Recently, the oil and gas prices increase day by day which makes difficulties for developing countries like China, India and Vietnam to have a stable economic condition. The demand of oil and gas consumption all over the world is increasing, therefore the services required in developing new offshore facilities for oil and gas exploration also increases.

Developing the facilities for an offshore oil and gas field such as platform, Oil and Gas Companies (hereinafter referred as the Project Company) normally sign an EPC (Engineering, Procurement and Construction) contract with the EPC contractor. For this field of industry, there are only few numbers of EPC Contractors in the Asian South East countries who can execute a full EPC project, therefore the EPC contractor is normally selected and awarded thru the international bidding tender. The major factors for executing an EPC project are the contract clauses which are normally generally stipulated, with unclear understanding and interpretation when having disputes between the contractor and the project company. Therefore, studying the method in developing the effective, simplified and understandable clauses in the EPC contract is necessary. In this context, involved parties will understand and interpret clearly the contract negotiation prior to the EPC contract signing and commencement. The understandable and applicable contract clauses properly will help an EPC project to be executed smoothly and effectively.

In order to minimize the interfaces and risks between the separated contractor and the project company during executing an oil and gas project, the oil and gas companies normally prefer to award and sign an EPC contract with the EPC contractor, however this project delivery method will take a lot of time to make clarification, explanation and get the mutually agreement on the contract clauses between the contractor and the project company. The following problems are normally involved with the EPC contract clauses:
1. Take time to make the clarification and finalization before contract signing;
2. Wrong understanding and interpreting of stipulated clauses in the contract;
3. Conflict between contractor and the project company during project execution.

Mr. Nguyen Van Diep made a case study that focused on the issues related to EPC contract. His study objectives are to (1) study the advantages and disadvantages of EPC contract; (2) study the contract clauses to manage EPC oil and gas project; and (3) state the problems in the contract and propose the effective solutions to resolve the problems.

Mr. Diep outlined below the summary of effective clauses in oil and gas EPC project and lessons learned in the EPC contract and conclusion. He also gave some suggestions in applying the effective clauses that can be carried out to expand the understanding regarding the contracting arrangement that are used in EPC project in the Vietnam Oil and Gas industry.

1. Summary of contract clauses
These clauses are normally defined and given by the Project Company in order to protect the project objectives and the Project Company from any kind of risks that may happen. However from contractor’s point of view, it will be very risky if the Contractor complies with all these clauses without any exception or amendment. Therefore, providing the effective clauses based on the project documents and the Project Company’s interest shall be addressed during the bidding preparation and negotiation.

In summary, the effective clauses are the terms and conditions stipulated in the contract which shall be defined based on the interest and “win-win solution” basis for both the Project Company and the EPC Contractor.

2. Lessons learned in the EPC contract
EPC contract is quite complicated in terms of legal issue, therefore the Project Company and the EPC Contractor shall have enough experiences and knowledge about the nature of project facilities in order to avoid their faults and minimize the risks during contract execution. There are some key elements that the Contractor shall be needed to focus on the following issues below to implement in an EPC contract:
- Incorporate a more thorough requirement of using an earned value system with an objective measurement method. Try to use the Contractor’s standard system to its full extent and make sure it is an objective, not a subjective, measurement.
- Specify the types, formats, and frequency of reports in the contract to set the expectations and to avoid disturbing contractor’s standard practices
- Agree on the monthly percent completion of EPC early and compare them with other past EPC project experiences
- Continue the use of “monthly milestone events” evaluation and payment structure.
- Distinguish documents subject to the project company’s approval turnaround and documents subject to the project company’s review
- Assign the Project Company’s specific equipment and drawing numbers early
- Ask each discipline engineer to write and communicate the hottest items/concerns in their areas of responsibilities in the early stage of the Project
- Promote a proactive planning effort throughout the organization
- Devise a method to facilitate the early detection of potential cost and schedule deviation to minimize surprises
- Use variance analysis to concentrate the management efforts
- Ensure that milestone events and progress curves support and consistency each other
- Clarify the project company’s responsibilities and roles in construction, commissioning and hand-over.
- Identify commissioning system/events early.

For the project company to manage EPC lump sum contract, they also need to understand lump sum contract characteristics from the perspectives of both the contractor and the Project Company. EPC projects offer a mutually beneficial and exciting form of project delivery for both the project company and the contractor. However the EPC contract come many new risks that are often severe, due to the complex nature and high cost frequently associated with this type of project. Understanding the risks and some of the other unique characteristics of EPC contracting is critical to a successful project where both the project company and the contractor obtain the high rewards for the risk.

3. Conclusion for the advantages and disadvantages of EPC Contract
The advantage from the Project Company’s point of view of an EPC contract is that the contractor takes full responsibility in respect of the following:
- Cost of completion if it is a lump sum contract (subject to limited adjustments);
- The time for completion (subject to extensions of time);
- The quality of the design and work and achievement of performance guarantees (subject to any exclusion).

This means that the potential factors for multiple disputes is also avoided. However, the major disadvantage for the Project Company of the EPC contract is that the detailed design is the contractor's prerogative. Accordingly, in an EPC contract, great care needs to be taken that the Project Company specifies and defines the design parameters and deliverables (including consumption of utilities and emissions) so that the Project obtains a project of the required standard. This is usually required more than simply stipulating performance criteria in relation to the output of the project, and will include design-life and maintenance issues.

The results from his study have identified that the advantages and disadvantages of EPC contract as well as description of the application for some major clauses and finding the way how to minimize the risks for the Project by providing the effective amendment in consideration of the EPC Contractor’s point of view and the project objectives expected by the Project Company.

4. Conclusion for the contract clauses to manage EPC oil & gas project
The contract clauses are the most important tool to manage the EPC project. Therefore, the involved parties (i.e. Project Company, EPC Contractor) shall understand and know how to apply this tool effectively to manage the project in term of costly, timely and quality.

The contract clauses will be only effective when these are defined and stipulated in accordance with the project specification, documents and nature of work to be performed. Finally, these clauses also are established and finalized according to the mutually agreement between the Project Company and EPC Contractor.

5. Conclusion for resolving the problems in an EPC contract
The problems always happen in the construction project and it will be very difficult to avoid problems happening to the project; however the problems can be ignored or minimized by understanding clearly about the scope of application for each contract clause in term of legal aspects and project requirement. In addition, these problems can be foreseen and negotiable during the bidding phase prior to finalization of contract documents and these shall be controlled and monitored during all phases of project.

In conclusion, besides the other relationships between Project Company and EPC Contractor, the fair and effective contract clauses stipulated in the contract document are tool to resolve all problems in an EPC contract in term of contractual relationships between Project Company and EPC Contractor.

General Conclusion
In conclusion, the major clauses in the EPC contracts are not the same for all project, these also depend on each project scope of work, complexity, specification and documents, the project company’s requirement and expectation and mostly on the outcome of contract negotiation between the Project Company and the EPC Contractor. Therefore, the meaning and application of major clauses in the EPC contracts shall be different in term of the standard form contract i.e. FIDIC or other organizations as well as in each kind of industry i.e. construction, oil and gas, etc.

His thesis abstract is copied and posted.

ABSTRACT

Nowadays, the EPC contract is very wide applied in oil and gas industry in this Region for developing an oil & gas field project, this EPC contract is as a “fast track” tool to reduce the project duration. In order to execute this kind of contract successfully in term of the benefit for all involved parties, it is necessary to focus on some key factors that shall be affected on the project during execution phase i.e. contract terms and conditions clauses. Therefore, understanding and interpreting the application of term and condition clauses clearly in EPC contract will help the project to be executed and monitored by using the proper manning level in accordance with project specification and the project will be achieved its goals without the minimized disputations and conflicts happening.
This study will also discuss on the advantages and disadvantages of EPC contract from both Contractor and Project Company’s point of view and how to manage the EPC contract in accordance with term and condition clauses stipulated in the signed contract documents; how to resolve problems by understanding the contract clauses. However, the improvement of some major clauses are still needed in order to specify and define clearly the duties and responsibilities as well as obligations of involved parties to minimize the conflicts, interfaces, risks and disputes that can be happened during the project execution phase.

4 comments:

josav said...

I would like to say that your blog is well-written and it contains lots of useful and up-to-date information.
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Fortune Egbadon said...

What kind of contractual arrangement would you recommend for an oil major and EPC contractor??? Reimbursable contracts? Fixed price lump contracts?

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