Aneel suspends the granting of 4 delayed anti-rationing thermals

The electricity sector regulator signaled this Tuesday (9) that it intends to demand compliance with the deadline for the operation of anti-rationing thermal plants that did not start operating within the deadline. Aneel (National Electric Energy Agency) decided to suspend the granting of the four gas plants owned by Turkish KPS (Karpowership Futura Energia).

In practice, this paves the way for contractual termination. Sought by the report, the company did not express its assessment of the decision.

These thermal plants are part of a group of 11 delayed plants, out of a total of 17, which won the first PCS (Competitive Simplified Procedure) in October last year.

According to the schedule, these thermal plants should operate from May 1, 2022 to December 31, 2025. In the event of a delay in energy delivery, a fine would be paid and the contract would be terminated as of August 1 of this year.

The 11 delayed thermal plants represent an additional cost of BRL 32 billion in the electricity bill. As the cost is very high and the delay represents the breach of the contract, several entities have already positioned themselves against the extension of the deadline.

Companies with delayed projects have already been notified to provide clarifications to the CCEE (Chamber of Electric Energy Trading). The expectation is that all resort to the so-called exclusion of responsibility until the beginning of the second half of August.

KPS anticipated the move and had already filed this feature with Aneel.

This mechanism allows a company to claim compensation when it suffers from exceptional intent. In this case, the companies tend to claim that they were victims of unforeseeable circumstances to justify the delay in the construction of the plants or in the delivery of energy and to ask for an extension of the deadline.

In the lawsuit, the company claimed that the delays came from unpredictable problems, such as restrictions on connecting to the grid and the need to change design features. He also said that there was a delay in the delivery of inputs due to the closure of the port of Shanghai, a consequence of the new Covid outbreak in China.

He also claimed that he had to comply with the rite of promoting additional studies because of the changes in the projects and faced problems with environmental agencies.

In order to reject the request, the rapporteur of the case, director Hélvio Guerra, said that the exclusion of liability for delay in the beginning of the commercial operation is considered when the company is in fact unavoidable victim, when there is a clear correlation between causality and the delay or when an event above the company’s responsibility occurs.

Guerra stated that none of the items presented by the company fit the definition, as all the problems presented were foreseeable risks that the company assumed when signing the PCS contract.

In his vote, he highlighted that even though the risk of not being able to meet the tight deadline between the completion of the PCS, in October 2021, and the beginning of the operation, in May 2022, was known to the companies that participated in the auction. It is therefore up to the entrepreneur “to act in order to mitigate the possibility of delay, reduce or eliminate it”, says Guerra in his vote.

Lawyer Bruna Borges, the company’s legal manager, and executive Beyza Ozdemir, who accompanied the venture in Brazil, highlighted the projects that were completed with an investment in the country, including the hiring of 100 suppliers and the creation of 1,500 jobs.

Bruna also stated that Aneel needed to consider that the questioning of the environmental licensing led to an injunction that paralyzed operations.

KP won the PCS with the thermal plants Karkey 13, Karkey 19, Porsud I and Porsud II, located in the municipality of Itaguaí, in the state of Rio de Janeiro. According to the project, there would be four powerships (generators on vessels) and a floating unit for storage and regasification of liquefied natural gas in Sepetiba Bay.