Contract energy management projects involve many subjects and complicated links, which easily lead to various risks. However, as long as these risks are reasonably arranged and properly transferred and distributed consciously, all parties, especially energy-saving service companies, can fully guarantee their expected interests. The following are the risk prevention measures for the contract energy management project that I have compiled for you. Welcome to read and browse.

First, the basic risks of contract energy management projects and their preventive measures

1 project feasibility risk

The feasibility risk of the project refers to that the energy-saving service company and energy-using customers have expected the energy-saving benefits of the energy-saving project, but the actual energy-saving benefits are lower than this expectation, even lower than the cost of the energy-saving service company to develop the project. This risk is combined with other risks, the occurrence of which may lead to this risk. This kind of risk is inevitable and must be borne by the development and operation of the project; However, it is also feasible to reduce the probability of other risks, so that the feasibility risk of the project can be reasonably shared among the project participants, or to transfer its feasibility risk by transferring the ownership of the project. One of the characteristics of contract energy management is that energy-saving service companies bear the risk of project feasibility. In practice, energy-saving service companies can transfer risks through business cooperation with other participants in contract energy management, such as financial institutions, equipment suppliers, technical service providers and insurance companies. For example, transfer the creditor's rights of contract energy management projects to financial institutions, so that financial institutions can become the actual creditors of contract energy management projects; Insure project risks, share project risks with insurance companies, and so on.

2 Project customer risk

Project customer risk refers to the failure of contract energy management projects due to energy customers. The smooth development of contract energy management projects can not be separated from the close cooperation of energy customers, who must have a good economic foundation, market development prospects and good credit, so as to prevent the economic benefits of energy customers from falling or even going bankrupt after the start of energy-saving projects, so that the implementation of energy-saving projects can not be guaranteed, and the economic benefits of energy-saving service companies can not be guaranteed. The most important means to prevent the risk of energy-using customers is to conduct due diligence to investigate the basic information of energy-using customers (establishment time, registered capital, availability of funds, name and strength of shareholders, organizational structure, etc.). ), financial situation (main business, part-time business, total assets, liabilities, net assets, profits, accounts receivable, etc. ) and major events (major construction projects, major investment projects, major system reforms, major judicial proceedings, etc. However, due to the unequal trading status of the two parties in practice, the scope of due diligence will of course be adjusted according to the needs, but the most basic business situation, property situation and major issues must be investigated by professional lawyers to determine the credit rating of project customers. Energy-saving service companies should pay attention to establishing strategic partnerships with commercial banks and insurance companies in this link, and use their customer reputation evaluation system to scientifically and systematically evaluate their target customers, and at the same time correctly evaluate and subdivide their customer groups. According to the evaluation results, combined with the technical characteristics of the company and the industry characteristics of the whole province, they can divide customers into three categories: gold customers, opportunity customers and high-risk customers, and adopt different management models to minimize the credit risk of customers.

3 Project financing risk

Project financing risk refers to the lack of financing ability of energy-saving service companies, which leads to the break of the project liquidity chain, which makes the contract energy management project unable to continue to operate and leads to the project failure. This risk can be prevented from two aspects:

First, internally, energy-saving service companies increase their economic strength and improve their project financing capabilities;

Secondly, keep close contact with banks and other financial institutions to ensure the diversity of financing subjects, and establish a benefit sharing mechanism with energy-saving equipment suppliers, energy-saving technology service providers and insurance companies through early investment;

Furthermore, we can flexibly use energy-saving income as financing guarantee to expand the financing scope.

4 project energy saving forecast risk

Project energy-saving risk refers to the fact that the energy-saving service company and the energy-using unit have not agreed on energy-saving measurement and monitoring, or the agreement is not clear, which leads to disputes in the actual operation process and the real energy-saving amount cannot be determined. Energy saving risk is the most likely risk in contract energy management projects. In order to reduce the probability of this risk, we must do the following work:

1) agree on the specific technical scheme of energy consumption measurement, detection, monitoring and verification adopted in the energy-saving service contract;

2) Before the energy-saving renovation, determine the original energy consumption of energy users or determine the corresponding baseline;

3) After the completion of the energy-saving project, reasonably and accurately detect and verify the actual energy consumption after the transformation;

4) In order to prevent energy-using enterprises from deliberately reducing the production scale and energy consumption, the production scale before energy saving and the production and operation scale after energy saving can be agreed in detail;

5) In order to prevent the energy-saving service company from unreasonably expanding the amount of energy saving, the energy-saving service company should also assign corresponding technicians to participate in the confirmation of the original energy and the current energy.

In order to standardize the determination standard of energy saving, China National Institute of Standardization is studying and formulating the Technical Specification for Contract Energy Management. There are three main methods to determine energy-saving standards in actual operation:

1) Strengthen technical measurement,

2) Both parties agree to recognize that,

3) Introduce a third-party certification body, and determine the specific energy saving amount through a neutral third party.

5 Project market risk

The market risk of energy-saving projects refers to the shrinkage of energy-saving profits due to market changes in the main business of energy-using customers or drastic changes in energy prices, which leads to the failure of the expected contracted energy management projects. The market risk of the project needs to be grasped through commercial sensitivity. The probability of this risk is small, unpredictable and inevitable.

There are mainly the following methods to prevent this risk:

1) Reasonable risk sharing, and transfer this risk to insurance companies, banks, energy users and other subjects;

2) At the beginning of the project, determine the lowest price, specified price, final average price or floating price within a certain range. Fluctuations within the foreseeable range can be regarded as commercial risks, which are agreed in the contract to be borne by one party;

3) At the same time, it can also be stipulated in the contract as a risk factor of force majeure to reduce or exempt the corresponding responsibilities.

6 Project construction risk

Project construction risk refers to the delayed completion of the project due to the reasons of the construction unit or other environmental factors, which makes the project unable to proceed smoothly. The contracted energy management project must be completed within the time stipulated in the contract to ensure that the investment can be recovered in time. If the project is postponed, it will inevitably lead to the failure of the energy-saving service company to obtain income in time and pay the interest on bank loans, and other expenses will increase accordingly, resulting in an increase in project cost.

Measures to reduce this risk mainly include:

1) Define the project schedule and specify the time and date of each node in the contract;

2) Require the managers and operators of energy-using customers to intervene in the construction process to avoid the invalid connection between the early stage and the late stage of the project;

3) Designate a special project progress supervisor to be fully responsible for the whole process progress of the whole contract energy management project;

4) In the process of construction progress, determine a certain time flow flexibly to prevent the delay of the construction period;

5) By defining the corresponding timetable in the contract signed with the third party, the liability for breach of contract can be determined, and the risk can be transferred if the risk cannot be avoided;

6) Sign an engineering construction risk insurance contract with the insurance company to share the risks.

7 Energy-saving technical risks

The risk of energy-saving technology refers to the failure of contract energy management projects due to unstable energy-saving technology and poor operation of energy-saving equipment.

Measures to prevent this risk mainly include:

1) Use the tested advanced technology and equipment, and do not test the application of the latest technology and equipment in the project;

2) Require technology and equipment suppliers to provide corresponding guarantees and stipulate the responsibilities after risks occur.

8 Investment income risk

Investment income risk refers to the failure of energy-saving service companies to obtain expected profits due to changes in customer credit and exchange rate during the process of recovering income. This kind of risk is unique to the energy management contract project, which is closely combined with the customer credit risk and market risk mentioned above. If the credit risk and market risk of customers are properly avoided or transferred, the investment income risk of energy-saving service companies can also be reduced accordingly.

Second, the legal methods to avoid the risks of contract energy management projects

The risk prevention of contract energy management projects is directly reflected in the contract terms. The risk prevention of contract clauses can be realized through the following ways, including the contract of customer information, force majeure clauses, situation change clauses, liability clauses for breach of contract, guarantee clauses, diversification of contract subjects, contract risk transfer and other mechanisms.

1 customer information contract

The so-called contractualization of customer information means that when signing a contract with a customer, an energy-saving service company should take its qualifications and other statements, promises and guarantees to customers as part of the contract. After the information is written into the terms of representation and guarantee, the customer must guarantee the authenticity and accuracy of the information provided, otherwise it will bear the legal responsibility for fraud.

2 Force Majeure Clause

China's "Contract Law" clearly stipulates the principle of force majeure, that is to say, when there is an objective situation that the parties cannot foresee, avoid or overcome, the parties may agree not to assume responsibility. By stipulating national policies, wars, earthquakes and other natural disasters as force majeure clauses in the contract, and assigning corresponding responsibilities, the risks of all parties to the contract can be exempted or reduced and redistributed. The agreement on force majeure should clearly stipulate the meaning, scope, subsequent treatment measures and the responsibility sharing of both parties.

3 change of circumstances clause

The principle of rebus sic stantibus is not established in China's contract law itself, but it is clearly stipulated in the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the People's Republic of China (PRC) Contract Law (II). After the establishment of the contract, the objective situation has changed significantly, which is not a commercial risk and cannot be foreseen by the parties when concluding the contract. If one party continues to perform the contract or fails to achieve the purpose of the contract, and the party requests the people's court to modify or terminate the contract, the people's court shall decide whether to modify or terminate the contract according to the principle of fairness and the actual situation of the case. ? That is to say, in actual judicial practice, the specific application of the principle of change of circumstances can be agreed for cases not covered by the force majeure clause. It can be applied to energy saving risk and energy price risk. The scope of application of the principle of changed circumstances needs to be clearly defined, and not all price changes can be applied, because in some cases, these changes are commercial risks, and the contract subject should bear the risks by himself.

4 Liability for breach of contract clause

The risks of contract energy management projects (especially energy-saving benefit-sharing projects) are all borne by energy-saving service companies. However, in the process of implementing the contract energy management project, what is needed is the active cooperation of energy users. When signing energy-saving service contracts, energy-saving service companies should pay attention to defining the obligations of energy-using customers and the responsibilities of energy-using customers for not fulfilling their contractual obligations. It should be noted that the agreement on liability for breach of contract is clear and specific. If the energy-saving service company fully estimates the various possibilities and risks in the project operation process, and specifies the liability for breach of contract, it can not only directly apply the specific terms at that time, but also help the energy-using customers to effectively evaluate the risk of default, thus objectively deterring the other party from actually breaching the contract.

5 guarantee clause

During the negotiation of energy management contracts, energy-saving service companies should pay attention to providing independent third-party guarantees to each other, such as payment guarantee of energy-using customers, supply guarantee of equipment suppliers, service guarantee of technical service contracts and guarantee during construction, which can reduce the risks of energy-saving service companies. The relevant parties, especially the third party, may also request the energy-saving service company to provide payment guarantee. Effective guarantee can better disperse the commercial risks of energy-saving service companies and improve the actual performance ability of the other party to the contract, which is an effective means for energy-saving service companies to disperse risks.

6 diversification clause of contract subject

According to the basic principle of risk dispersion, non-systematic risks can be combined by selecting subjects with different risk characteristics, that is, different risks cancel each other out, and finally form a risk-free or low-risk combination. This requires professional lawyers to participate in the rational division of risk points among various subjects and coordinate the interests among various subjects.

8 contract risk transfer clause

Contract risk transfer is mainly through the transfer of contractual creditor's rights and signing contracts with professional risk guarantee companies and insurance companies. The transfer of creditor's rights is mainly realized through the general transfer of energy-saving service contracts or the independent transfer of the rights of energy-saving service contracts. The participation of insurance companies can carry out a moderate risk burden.

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