5 Tips on connecting to the grid (late)

Completion is a contractor's core task when realizing (building) works on commission. The condition in which a work must be delivered obviously depends on the agreements between the parties. More than once it is part of the contractor's duties to ensure that the work is connected to the electricity grid upon delivery. This is not surprising: a work is (usually) unfit for use if it is not connected to the electricity grid. However, this obligation can lead to problems: more than once a delivery is delayed because a work is not connected to the electricity grid (on time). After all, a contractor is dependent (for connection to the grid) on the grid operator. Many grid managers suffer from a shortage of technically skilled personnel, as a result of which there is a delay in the realization of the connection. So what do you do as a contractor?

Tip 1: Know the applicable deadline in the law

The Electricity Act 1998 has a deadline within which a system operator must realize a connection. Section 23(4) of this Act states the following.

"A connection shall be realized by the network operator within a reasonable period of time. This reasonable period shall in any case have expired if the requested connection has not been realized within 18 weeks after the request for a connection was submitted to the network operator (...)"

(The second sentence refers to connections up to 10 MVA and connections for renewable electricity or high-efficiency cogeneration, see subsections a and b of Section 23(4) of the Electricity Act 1998).

In other words, the deadline for the grid operator to realize the (most) connection(s) is (at most) 18 weeks after application. So the grid operator can (i.b.) be held to that!

Tip 2: Note the start of this term

An application for connection to the electricity grid is usually made online to the grid operator. This is usually followed by a quote from the grid operator. Some time may pass between the time of application and the quotation. It happens that grid operators pretend that this period only starts after the quotation is issued, which is incorrect. The period starts from the time of application.

Tip 3: Be on time

An open door (but no less important for that): apply for affiliation in time! It is easier to make use of some margin, than legal wrangling afterwards. Using a margin is also a lot cheaper than getting even afterwards.

Tip 4: Agree on a commitment of effort

A lot of problems can be avoided (for the contractor) by ensuring that an obligation of effort is included and not an obligation of result. In other words, the contractor should make reasonable efforts to ensure that the connection is realized on time, but does not guarantee it.

As a contractor, you would also do well to alert a client to the fact that a grid operator is not infrequently (too) late in making a connection.

Tip 5: Be proactive

If an obligation of result has been agreed upon and it is clear in advance that the network operator will not realize the connection in time, it may pay off to act proactively and (if necessary) to start summary proceedings. In these preliminary relief proceedings the judge will be requested to order the network operator to realize the utility connection (in time) on penalty of a fine.

The alternative is reactive action. After all, in theory, as a contractor you could (try to) recover the damage suffered from the network operator afterwards. Such delay damages can be severe in the event of a late delivery penalty (not uncommon in construction). Nevertheless, the discussion afterwards (about the damage) is a more difficult one than the discussion beforehand (about the timely realization of the connection).

In conclusion

These tips notwithstanding, it can of course happen that a contractor will be faced with an exceeding of that 18-week deadline and delay damages as a result (for example, in the form of a contractual penalty for late delivery). Thereafter, an attempt can be made to recover these damages from the network operator. A tricky element here, however, is the fact that network operators (often) exclude such liabilities in their general terms and conditions. That soup is not always eaten so hot, since applicants for small consumer connection are entitled to some protection for unreasonable clauses in general terms and conditions. A further explanation of this goes beyond the scope of this contribution. For practice, it is particularly important to consider the issue in advance: there is a shortage of technical staff at the network operators and this can cause delays (in realizing a connection). Clients and contractors would do well to discuss in advance (when concluding the building contract) how this will be handled. If litigation cannot be avoided, then better in advance than afterwards. In that case, seek timely legal assistance if things threaten to go wrong in order to prevent more damage and costs!