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

Procurement, Negotiation and Preparation of Contracts:

• Represented owner in advising on procurement strategy and preparing procurement documents and EPC contract for new process plant in New Brunswick currently under development.
• Represented 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.
• Represented 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 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, 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 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 Terasen Gas (now FortisBC) in preparing procurement documents, negotiating and finalizing a fully negotiated EPC contract for a peak-shaving LNG plant, including advising on and negotiation performance guarantees and specifications.  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, and assisted in resolution of 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 specifications and drawings to ensure completeness and eliminate ambiguities in and conflicts between documents.
• Represented Columbia Power Corporation and prepared all RFPs, proposal competition agreements and a fixed price EPC contract, plus related engineering and other contracts, for the 185MW Arrow Lakes Generating Station project (completed 22 months ahead of original schedule, within original budget, and exceeding all performance guarantees), as well as for the successfully completed 120MW Brilliant Expansion Generating Station.
• Represented contractor and negotiated contracts and construction specifications for 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 center developed under a P3 contract for design, construction, financing, operation and maintenance.
• Represented Rapid Transit Project 2000 Ltd. in preparing, negotiating and finalizing the EPC Electrical & Mechanical Systems Contract, the EPC Vehicle Fleet Purchase contract and the 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.  Claim was successfully resolved through negotiation prior to completion without initiating arbitration or litigation proceedings.
• Represented road construction contractor in connection with major claims for changed conditions and additional compensation for construction of a new 130 km mine access road in remote northwestern B.C., including major river and mountain crossings, all resolved in contractor’s favour as owner misinterpreted 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 construction and maintenance.
• Represented marine contractor in claims against owner, and in defence of claims by subcontractor, in dispute over interpretation of soil densification specifications for stone columns for a new loading facility.
• Represented owner in defence of claims by EPC contractor for alleged changed subsurface conditions and interpretation of bore hole results for soil densification design to meet foundation requirements.
• Represented major U.S. equipment supplier in dispute in Ontario with an EPC contractor over the supply, installation and commissioning of major equipment for an 800MW thermal power plant in Ontario.
• 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.
• Represented surety in defence of numerous claims under performance bonds in BC, Saskatchewan, Ontario and Northwest Territories , including claims involving independent power projects, bridges, processing facilities, cogeneration projects, hospital construction, infrastructure and facilities, and in working on completion of bonded contracts.
• 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 major equipment for a pulp mill, which was successfully resolved by mediation in favour of owner.

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, including 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 over claims and counterclaims in excess of $300 million in central Canada over three EPC contracts for a major process facility, concluded in 2020.
• Appointed as member of 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 Sea to Sky Highway.
• Advised 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.
• One of three counsel in a three year 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 complete, turnkey paperboard plant.
• Independent counsel to arbitrator in an international construction arbitration where questions over the arbitrator’s jurisdiction, applicable law and rules of procedure arose after the hearing commenced and would have resulted in an unenforceable award. Assisted both the parties and the arbitrator by preparing a new arbitration agreement to apply retroactively that allowed arbitration to resume and be successfully completed without challenge.
• Independent counsel (with consent of parties) to a non-lawyer DRB, and to a non-lawyer referee, under various contracts for infrastructure construction, where the dispute resolution provisions were not working to assist the parties and the DRB/referee to revise and improve the process to work more productively and efficiently.
• 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.

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.