EnergyBit: Rules and weightings for 4th Dutch Offshore Wind tender (HKZ III&IV) to be published shortly and other relevant topics
With the tender for the Hollandse Kust Zuid III & IV offshore wind sites in Q1 2019 rapidly approaching, potential contesters and other interested parties are awaiting the publication of the definitive version of the Ministerial Regulation holding the rules and weightings related to the tender procedure and criteria for HKZ III&IV.
On 20 September 2018 a draft Regulation was published on the RVO-website (Dutch only) but at yesterday’s explanatory meeting, RVO stated that no changes are to be expected to the draft version and that publication will follow shortly, including an English translation. The exact tender dates have not yet been fixed.
Addition of fixed minima for each of the subcriteria
In view of certainty and continuity interests, the Minister of Economic Affairs and Climate Policy (hereinafter: ‘the Minister’) has chosen to copy the tender rules used for the previous Hollandse Kust Zuid tender (sites I and II).
A relevant change introduced in this draft Regulation is that, in order to improve transparency, fixed minima were added for each of the subcriteria already present. This way, participants to the tender should have a better understanding to what the possible maximum and minimum gain is with each of the subcriteria.
Rights of superficies for wind turbines located in the Dutch territorial sea
One other aspect of the Regulation is that in this specific tender, part of the sites is located in Dutch territorial waters. The Dutch State is owner of the seabed and its subsoil of the territorial sea. Therefore installations such as wind turbines need to have a right of superficies in place before installation. The Minister emphasized in the explanation memorandum to the Regulation that regarding the assessment of the feasibility of the project, the Minister will take into account whether or not (the costs to establish) rights of superficies are included in the submission. However, notably, the rights of superficies do not have to be established as yet.
On 13 November, 2018, a set of draft template contracts was published on RVO’s website for i) the vesting of the rights of superficies and for ii) the rent of the subsoil for the inter array cables in that segment of the wind farm site. At the RVO meeting of yesterday, no indication could be given yet as to the retributions due for the superficies and for the rent, as these were still being calculated to comply with market standards. Parties are invited to comment on the drafts until 23 November 2018, 17:00h.
RVO intends to keep up the pace in providing the necessary information for HKZ III&IV. The general idea is that there will be a three month period between the day on which all information has been made public and the closing of the tender. Consequently the exact tender dates depend on the date on which all information is available.
RVO will keep a Q&A open until one week before opening of the tender to give RVO enough time to answer all outstanding questions and have them available to all parties in due time.
Amendments to the Offshore Wind Energy Act regarding tender criteria
In addition to the amendment of the above mentioned Ministerial Regulation, more changes are upcoming: on 21 February 2018 the Minister already consulted the draft Amendment Bill of the Offshore Wind Energy Act (‘OWEA’) (hereinafter: the ‘draft bill’). Amongst the consulted amendments we would like to highlight in this EnergyBit, is the amendment on changes to the tendering criteria. An unofficial English translation of the changes including the accompanying explanatory memorandum can be found here.
At first glance, it seems that many more competences will be delegated to the Minister, such as the introduction of extra minimum and award criteria. In the current OWEA, the award criteria are all summed up in the act – the Minister can only attribute the weightings but nothing more. This is likely going to change, which means there is more flexibility to adjust minimum criteria and award criteria depending on the specific area which is subject to tender. On the other hand, this will also mean less legal certainty as before the introduction of a new tender, the precise set of criteria that will be used in the tender is only known the moment the (final) Regulation is published.
According to answers of the Minister on questions of MPs the parliamentary deliberations are on schedule and the (final) legislative proposal is expected be sent to Parliament before the end of this year. The current planning is that future tenders for offshore wind energy will be tendered on the basis of the amended rules.
We will keep you fully updated on the latest legislative developments such as the publication of the final Ministerial Regulation and on the amendment bill regarding the OWEA.
Should you have queries, please contact Redmar Damsma, Roland de Vlam or your trusted Loyens & Loeff adviser.
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RedmarDamsmaSenior associate Attorney at law
Redmar Damsma, attorney-at-law, is a member of the Competition & Regulatory practice group and the Energy Team. He specialises in (European) public procurement law, general law of contracts, European law and regulatory health care law.T: +31 20 578 50 10 M: +31 6 10 89 56 87 E: firstname.lastname@example.org