Performance guarantees are among the most consequential terms in a PFAS treatment contract. Without enforceable performance provisions, a water system has limited contractual recourse if the installed technology fails to achieve the required effluent quality. Procurement officers and legal counsel should scrutinize these clauses carefully during contract negotiation.
Defining the Performance Standard
The performance guarantee should specify the exact effluent target — expressed as a numeric concentration in μg/L or ng/L — for each regulated PFAS compound or sum parameter. Align this target with the applicable regulatory limit plus a compliance buffer. For example, if the state MCL for PFOA plus PFOS is 0.020 μg/L, the contract performance target might be set at 0.015 μg/L to provide an operational safety margin.
Define the measurement basis unambiguously: Is compliance determined on a single-sample basis, a quarterly running average, or an annual average? Specify the certified laboratory analytical method (e.g., EPA Method 533 or 537.1) and the required method detection limit. A guarantee that uses a poorly defined measurement basis will be difficult to enforce.
Remedies, Liquidated Damages, and Termination Rights
Specify the vendor’s obligations when performance falls below the guaranteed level. Typical remedies include a cure period (e.g., 30–60 days) during which the vendor must restore compliance at no additional cost, followed by liquidated damages if the cure period expires without resolution. Liquidated damages provisions should reflect your actual costs of non-compliance, such as regulatory fines, alternative water supply costs, and public notification expenses.
Include a termination for cause provision that allows the water system to terminate the contract and procure replacement technology if the vendor fails to restore performance within the extended cure period. Pair this with a performance bond or letter of credit requirement so that termination for cause provides actual financial recovery, not merely a contractual right without a solvent counterparty to collect from.
Having experienced water utility legal counsel review performance guarantee language before execution can prevent costly disputes and ensure that remedies are practically enforceable under your jurisdiction’s contract law.