Helmut K. Johannsen^* P.Eng., C.Arb, FCIArb

Procurement, Negotiation and Preparation of Contracts:

• Represent international EPC contractor regarding two major LNG projects in B.C., including reviewing contracts and advising on risks and revisions required during negotiation of contracts.
• Represent owner in advising on procurement strategy and preparing procurement documents and EPC contract for new process plant in New Brunswick currently under development.
• Represent an EPC contractor in negotiating and finalizing an EPC contract with a First Nations band for a new sewage treatment plant in the lower mainland of B.C., including reviewing and advising on revisions to technical output specifications and performance guarantees.
• Represented owner and prepared all procurement documents and construction contracts (including reviewing and recommending revisions to construction specifications and drawings) for a major highway relocation project required for development of a hydroelectric project.
• Represented Terasen Gas (now FortisBC) in negotiation of a contract (including specifications) for construction of a new gas pipeline under the new Sea to Sky Highway, with construction to be coordinated and take place concurrently with construction of the new Sea to Sky Highway under a PPP contract with the Province.
• Assisted the legal advisor team to Transports Québec and the Agence des Partenariats Public-Privé du Québec for the 7.2 km Autoroute 25 toll highway PPP project in Quebec, which included the design, construction, financing, operation and maintenance of the completion of Autoroute 25 in the Montréal Metropolitan Area (including a cable stayed bridge and dedicated transit lane).  This was the first PPP project that closed in Quebec.
• Represented City of Chilliwack in relation to a new major interchange and connector roads after original contract tendered came in more than 50% over budget, worked with project managers to revise procurement strategy, prepared new tender packages and construction contracts (including reviewing and extensively revising the highway construction and other specifications for the contracts), advised on award of contracts, and as part of project team monitored project during construction for early claims identification and amicable resolution.  Project ultimately completed well under the original budget.  Subsequently retained to prepare suite of standardized procurement and construction contracts for City of Chilliwack.
• Represented successful consortium under PPP contract for a new highway interchange of the Trans-Canada Highway in Metro Vancouver, including advising on inclusion of alternates to project requirements and specifications that significantly reduced the cost of the project and resulted in award to that consortium.
• Represented Waneta Expansion Limited Partnership and personally prepared, negotiated and finalized all process and procurement documents, including RFPs, competition agreements and a $587 million EPC contract, plus related engineering and other contracts, for the 335MW Waneta Expansion Powerplant Project.  Member of owner’s Management Committee monitoring project development, execution and early dispute resolution. Project completed ahead of original schedule, within original budget and no significant claims.
• Represented Barrick Gold Corporation in negotiating and finalizing new project management, construction management, construction, EPCM and EPC contracts, including target price and incentive sharing contracts, for the $8 billion Pascua Lama Project, a major gold and silver mine that straddles the borders of Argentina and Chile.  Also represented Barrick Gold Corporation in relation to an Alliance Agreement and EPCM template agreement for use on other projects.
• Special Advisor to Manitoba Hydro in relation to procurement and construction strategies and contracts for the $3.2 billion Bipole III HVDC project in northern Manitoba which includes both conventional and EPC contracts and international suppliers and contractors, and advised Manitoba Hydro on procurement strategy and construction contracts for the $6 billion Keeyask Generating Station Project.
• Represented Nalcor Energy in relation to procurement and construction strategies, risks, contracts and non-recourse project financing for the $6.2 billion Lower Churchill hydroelectric project in Newfoundland and Labrador, comprised of the 824MW Muskrat Falls dam and generating facility, two 345 kVac transmission lines (~250km), a 900MW, ±320 kV bi-pole dc transmission line including converter stations (~1,100km), a 30km sub-sea crossing of the Strait of Belle Isle; and two ±200 kV MI sub-sea crossing of the Cabot Strait, which resulted in a mixture of EPC, EPCM and traditional design-bid-build contracts.
• Represented Terasen Gas (now FortisBC) and prepared, negotiated and finalized a fully negotiated EPC contract with CB&I, including performance guarantees and negotiation of specifications, for a peak-shaving LNG Plant.  Project completed within original schedule, with less than 1% in change orders and claims, and surpassed all performance guarantees.
• Represented Korean engineering and construction contractor in negotiation of an EPC contract for a major project in the Oil Sands in Alberta, including construction of access roads, and advised contractor on claims arising from changed conditions encountered during execution.
• Represented major oil and gas utility companies, developed risk management strategies, and prepared, negotiated and finalized contracts for: construction of compressor stations on EPC basis; major pipelines; directional drills; underwater pipeline crossings; upgrades to existing facilities; and construction of regional and head offices and maintenance yards.  Worked with project teams to review, comment on and assist in revising construction specifications and drawings to ensure completeness and eliminate ambiguities and conflicts between documents.
• Represented Columbia Power Corporation and prepared all RFPs, proposal competition agreements and fixed price EPC contract, plus related engineering and other contracts, for the 185MW Arrow Lakes Generating Station project, which was completed 22 months ahead of original schedule, within original budget, and met all performance guarantees.
• Represented contractor and negotiated contracts and construction specifications for several lengthy oil field access roads for projects in Komi Republic and Russia, and for construction of a man-made island in Caspian Sea, Kazakhstan for an oil drilling platform.
• Represented Gold Reserve Inc. in negotiating and finalizing EPCM contracts (awarded April 2006) for the development of the Brisas mine project in Venezuela (capital cost US$ 638 million), including process, infrastructure, tailings and camp facilities.  EPCM contracts included EPC contracts within them for specific aspects of the project.
• Represented Abbotsford Regional Hospital and Cancer Centre Inc. and Partnerships BC regarding the P3 procurement process, output specifications and Project Agreement for a new 60,000 m2, 300 bed acute care hospital and regional cancer treatment centre developed under a P3 contract for design, construction, financing, operation and maintenance.
• Represented Rapid Transit Project 2000 Ltd. and personally prepared, negotiated and finalized EPC Electrical & Mechanical Systems Contract, EPC Vehicle Fleet Purchase contract and EPC Automated Fare Collection contract for the $1.2 billion Millennium Line rapid transit project in Metro Vancouver, and advised on and reviewed procurement documents and construction contracts for the balance of the project, including the guideway, tunnel and all stations.

Dispute Resolution – General:

• Represented owner in major disputes arising out of the failure of an EPC project, including in a CDN$50 million claim against the owner’s insurer and a concurrent CDN$50 million claim against the EPC contractor.  All claims efficiently and quickly resolved through short mediations, to the complete satisfaction of all parties.
• Represented owner in a CDN$100 million claim presented by an EPC contractor in connection with alleged changes in subsurface conditions from those disclosed.  Claim was successfully resolved through negotiation prior to completion of the project and to the satisfaction of all parties without initiating arbitration or litigation proceedings.
• Represented EPC contractor in connection with claims for changes in subsurface and other information provided by owner, and in defence of claims by owner for alleged deficiencies.
• Represented road construction contractor in connection with major claims for changed conditions and additional compensation for construction of a new 130 km long mine access road in remote northwestern B.C., including major river and mountain crossings, all of which were resolved in contractor’s favour as owner misinterpreted detailed contract specifications.
• Represented numerous highway maintenance contractors in B.C. in claims against, and in defence of claims by, the Ministry of Highways under various Highway Maintenance Contracts, particularly over interpretation of specifications for highway construction and maintenance.
• Represented marine contractor in claims against owner, and in defence of claims by subcontractor, in connection with interpretation of soil densification specifications for stone columns required as part of a new container loading facility.
• Represented owner in defence of claims by EPC contractor for additional compensation for alleged changed subsurface conditions and use of and interpretation of bore hole results for design of soil densification to meet foundation requirements.
• Represented general contractors, piling contractors, paving contractors and others in connection with highway, overpass, utility and related construction contracts, including claims for extras, changed conditions and conflicts or deficiencies in specifications.
• Represented, at various times, owners, contractors and subcontractors in connection with claims for additional costs and changed conditions, including damages for excessive settlement or differential settlement, adequacy of foundation design, and alleged changes in subsurface conditions, for all types of projects, including construction of buttresses and embankments for major roads and highways, and over foundations for highway bridges.
• Represented surety in defence of claims under a performance bond by owner over an alleged declaration of default and termination of an EPC contractor regarding an EPC contract for an independent power project, including new intakes, penstock and power plant, where numerous issues revolved around subsurface conditions and adequacy of design of foundations.
• Represented surety in connection with a bonding default by an EPC contractor in relation to an EPC cogeneration project in Ontario, including preparation of completion contracts and defending claims by the owner against the contractor and surety.
• Represented EPC contractor in the defence of $40 million action relating to an EPC contract for the design, supply and installation of 16 km overland coal conveyor at the Quintette Coal Mine, including many issues related to foundation design and subsurface conditions.
• Represented owner in a multi-million-dollar claim under EPC contract against a manufacturer for faulty design of a major equipment for a pulp mill, which claim was successfully resolved through mediation in favour of owner.
• Represented EPC contractor in connection with claims relating to changed subsurface conditions under an EPC contract for a new water treatment plant in eastern Canada.
• Represented surety upon the default of a subcontractor, including in completing six different major contracts for a green field oil refinery in Saskatchewan and resolving claims against six different EPC contractors for delays, extras, changes and interference.

Dispute Resolution – Alternative Dispute Resolution:

• Prepared numerous dispute resolution provisions for various EPC and PPP contracts, including for Dispute Review Boards, Dispute Adjudication Boards, Referee, Expert Determination and Independent Expert Review.
• Advised clients on arbitration and mediation provisions in international and domestic contracts, as well as arbitration and mediation processes, institutions, rules and procedures.
• Appointed Project Adjudicator on major highway interchange project in Manitoba.
• Appointed Chair of Arbitration Tribunal in dispute in excess of $100 million in Saskatchewan over three EPC contracts for a major process facility (arbitration currently underway)
• Appointed as member of Expert Panel established under the design, build, operate and maintain contract for the new Port Mann Bridge and associated highway infrastructure improvements currently under construction in Metro Vancouver (capital cost $2.46 billion).  Role declined due to, among other things, heavy pre-existing commitments on Pascua Lama Project in Chile and Argentina.
• Appointed as permanent member of three-person arbitration panel established under the dispute resolution provisions of the 25 year P3 Concession Agreement for the design, construction, operation, maintenance, rehabilitation and financing of the $600 million (capital cost) Sea to Sky Highway between Vancouver and Whistler, B.C.
• Represented major U.S. equipment supplier in an arbitration with an EPC contractor over the interpretation of its subcontract for supply, installation and commissioning of major equipment for an 800MW thermal power plant in Ontario, which dispute was resolved by negotiation prior to commencement of hearings.
• Assisted counsel on construction and technical issues in an ICC arbitration of a dispute in Ecuador over the EPC supply of a gas-fired turbine genset.
• Advised EPC contractor on arbitration procedure and strategy regarding major breach of contract dispute between contractor and owner for a new bulk material handling and ship-loading facility in Aruba.
• Represented clients in mediation of various construction disputes.
• One of three counsel in a three year long international arbitration under the rules of the International Chamber of Commerce over an EPC contract, which involved all aspects of design, operation and maintenance of a paperboard plant, including conveyors, pulpers, stock preparation equipment, head box design, press design, drier design, calendar and winder.
• Independent counsel to arbitrator in an international construction arbitration in which significant issues of the arbitrator’s jurisdiction, applicable law and rules of procedure were brought into question after arbitration commenced and would have resulted in an unenforceable award; and assisted both the parties and the arbitrator to resolve issues through a new arbitration agreement that allowed arbitration to resume and be successfully completed.
• Independent counsel (with consent of parties) to a non-lawyer DRB, and to a non-lawyer referee, under various contracts for infrastructure construction, including advising the sole DRB member on a bridge reconstruction contract to restore the DRB process where both parties initially referred to the DRB every decision of the Owner’s Representative, resulting in increasing hostility, delaying the contract and corrupting the DRB process (process was ultimately successfully restored and worked more productively).
• Independent counsel (with consent of parties) to arbitrators or mediators, retained on several arbitrations and mediations involving road, bridge, water reservoir and other infrastructure construction, to advise non-lawyer arbitrator or non-lawyer mediator on drafting and concluding enforceable arbitration or mediation agreements, as applicable, and then advising on procedural and other matters during the arbitrations or mediations to assist them in complying with procedural, fairness and other matters to facilitate expeditious resolution of disputes, preserve arbitrator’s jurisdiction and reduce potential for challenges of awards rendered by arbitrators or settlement agreements reached with the assistance of the mediator.
• Sole arbitrator in a number of construction disputes, including: between a municipality and a contractor over development of a subdivision; between a municipality and a contractor over construction of sewer and water lines; between a contractor and subcontractor over changes in a construction contract; between owner and contractor over EPC supply and installation of a pre-packaged sewage treatment plant; between an owner and contractor on a large project constructed by construction management; and between an owner and contractor over the design and construction of a major vessel.
• Member of three-person arbitration panel in a construction dispute involving a contract for a new water distribution pipeline system.
• Chair of three-person arbitration panels, including in disputes over a major sewer line construction involving claims for changed subsurface conditions.