An Operation and Maintenance Agreement (often called an O&M contract) is the legal backbone of how power plants, industrial facilities, commercial buildings, and infrastructure assets are operated after construction and commissioning. In Turkey, these agreements are usually concluded as commercial contracts and shaped by general principles of the Turkish law of obligations, commercial practice, and—where relevant—sector-specific regulatory requirements. A well-drafted Operation and Maintenance Agreement is not merely a “services contract”; it is a risk-allocation and performance-governance instrument that determines whether an asset will remain safe, compliant, and financially predictable throughout its lifecycle.
1) Contract purpose and legal character
The commercial reality of O&M is continuous performance: the operator manages day-to-day operations, preventive maintenance, corrective maintenance, reporting, and compliance routines. Legally, Turkish practice commonly treats the arrangement as a mixed service relationship with result-oriented elements, especially where the operator undertakes to maintain defined availability, efficiency, or output levels. Because long-term O&M is operationally complex, the contract should clearly state whether the operator’s obligation is “best efforts” (a professional standard of care) or “guaranteed results” (availability/efficiency commitments). This distinction drives the dispute landscape: the more the contract promises measurable results, the more important it becomes to define measurement methods and exclusions.
2) Scope, asset boundaries, and interfaces
Most O&M disputes begin with scope creep. A high-quality Operation and Maintenance Agreement should define “what is inside the fence” and “what is outside the fence,” including:
- Asset boundary and equipment lists (main systems, auxiliaries, SCADA/control, metering)
- Responsibility for spare parts (critical spares, consumables, warehousing)
- Major overhauls vs. routine maintenance (and who funds them)
- Interfaces with third parties (grid operator, fuel supplier, security, cleaning, waste disposal)
- Employer-provided items (utilities, permits, access, IT infrastructure)
A practical tool is an annexed “Responsibility Matrix” allocating tasks (inspection, calibration, lubrication, component replacement, shutdown planning) to the operator, the owner, or nominated subcontractors.
3) Performance standards, KPIs, and reporting
To maximise enforceability and reduce ambiguity, performance obligations must be measurable. Common KPI frameworks include:
- Availability and reliability (definitions of planned/unplanned outages)
- Response times and repair times (SLA-style metrics)
- Preventive maintenance compliance (schedule adherence)
- Safety indicators (incident reporting, training completion)
- Efficiency or heat-rate targets (where technically meaningful)
The contract should also define data sources and calculation rules—particularly if the owner relies on lender reporting, insurance compliance, or regulatory reporting. Without a robust measurement clause, parties can disagree on whether performance is genuinely deficient or merely a by-product of external constraints (fuel quality, grid curtailment, ambient conditions, operator access restrictions).
4) Compliance, HSE, and regulatory alignment
Operational compliance is a continuous obligation. The Operation and Maintenance Agreement should allocate responsibility for:
- Occupational health and safety management (site rules, toolbox talks, permits-to-work)
- Environmental compliance (waste handling, emissions monitoring where applicable)
- Training and certification (operator competence, subcontractor supervision)
- Audit cooperation (owner audits, insurer audits, authority inspections)
If the asset sits in a regulated space (e.g., energy facilities), the operator’s duties should align with the owner’s licensing responsibilities and internal compliance programme. This is especially important where non-compliance can trigger administrative sanctions or operational suspensions.
5) Payment model, pass-through costs, and adjustments
O&M pricing is commonly structured as:
- Fixed fee (for core staffing and routine tasks),
- Variable fee (performance-based or output-based),
- Reimbursables (spare parts, subcontractors, consumables) subject to approval rules.
To avoid later conflict, reimbursables should include procurement procedures, mark-up rules (if any), competitive quotation thresholds, and emergency procurement exceptions. For longer terms, parties frequently negotiate indexation or defined adjustment mechanisms (labour inflation, currency exposure for imported spares), while preserving transparency and budget predictability.
6) Defects, warranty interfaces, and liability structure
During early operations, the line between construction defects and operational issues can blur. The Operation and Maintenance Agreement should coordinate with the EPC/warranty regime by defining:
- Defect identification and notification procedures
- Cooperation duties in warranty claims (evidence, logs, vendor coordination)
- Exclusions where OEM warranties require specific operating parameters
- Liability caps and carve-outs (gross negligence, wilful misconduct, safety breaches)
Owners typically want strong remedies; operators need liability to remain insurable. A balanced approach is to combine (i) clear indemnities for third-party claims caused by operator fault, (ii) capped contractual liability for commercial losses, and (iii) a structured cure period before termination.
7) Term, termination, and step-in rights
Because continuity is central, termination provisions should be realistic. Common triggers include material breach, repeated KPI failures, insolvency, and serious safety violations. Owners—especially in project-financed assets—often require “step-in rights” or transition support, enabling the owner (or a replacement operator) to take over without jeopardising operations. Transition provisions should address handover documentation, system access, spare parts inventory, staff transfer options, and data ownership.
8) Dispute resolution and evidence discipline
O&M disputes are evidence-driven: logs, SCADA data, maintenance records, incident reports, and meeting minutes often decide the outcome. The contract should mandate recordkeeping standards and define escalation steps (operational committee → senior management → mediation/arbitration or courts). Where technical issues dominate, expert determination can be added for KPI calculations or root-cause questions.
Conclusion: In Turkey, a carefully drafted Operation and Maintenance Agreement converts operational complexity into measurable obligations, controlled costs, and auditable compliance. By prioritising scope clarity, KPI governance, and transition readiness, parties can reduce disputes and protect long-term asset value.
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