Nuclear vendor Westinghouse has described as “alarmist” Eskom’s argument that the existing steam generators at Koeberg would pose a safety threat after 2018, arguing in an affidavit filed with the Constitutional Court that it is able to install replacement steam generators well before the end of their life in 2025.

Eskom awarded the R4.3-billion Koeberg contract to Areva in September 2014, but Westinghouse contested the award and, in December, the Supreme Court of Appeal (SCA) ruled that Eskom’s tender committee had acted unlawfully by taking account of considerations not included as adjudication criteria in the original tender.

The SCA did not, however, interdict the contract from proceeding and instead referred the tender back to Eskom for reconsideration.

Eskom and Areva subsequently approached the Constitutional Court for leave to appeal the SCA ruling, while Westinghouse filed a cross appeal through which it is also seeking “substitution relief”. In other words, it is asking South Africa’s highest court to rule that the contract, which was found to have been unlawfully awarded to Areva, be placed with Westinghouse.

Westinghouse argued that, had it not been for strategic considerations not articulated in the original tender, its bid would have prevailed, as it was R140-million cheaper than Areva’s.

Eskom contends that the consequences of substitution would be serious, arguing that it would result in a delay in the current 2018 replacement schedule.

Westinghouse counters that Eskom’s own studies of Koeberg show that the ‘X23 deadline’, associated with the 2018 shutdown, is not immutable and that the replacements can be safely installed during future shutdowns.

It even argues that Areva has considerably delayed the implementation of the tender and will not in any event meet X23.

If awarded the contract by the court, Westinghouse says it could install the replacement steam generators during the 2021 outages.

In March, Areva indicated to Engineering News Online that 80% of the procurement associated with the contract to supply six replacement steam generators for Koeberg had been completed and that 30% of the forgings have been delivered for manufacturing in China.

Separately, Eskom CEO Brian Molefe has argued that it is proceeding with the replacements “not because there is going to be an outage, but because it’s the correct thing to do”. He has noted that most other nuclear plants that operate 900 MW-series reactors, such as those deployed at Koeberg, have already replaced their steam generators.

However, Westinghouse argues that if the court were so swayed by the timing argument, “it would allow a bidder to be advantaged by an unlawful tender award, and use litigation delays to build itself into an impregnable position”.

“It is also at odds with the approaches previously adopted by Eskom and Areva,” the company said in its filing. “Both met the urgent interdict proceedings brought by Westinghouse at the outset of the litigation by making no issue at all of the outages in 2018. Both stated that they were aware of the risks of the award being set aside, and that Areva commenced work on the project with its ‘eyes open’.”

Westinghouse asserts that Eskom and Areva’s arguments about “wasted costs” should also be disregarded as there is always risk of incurring expenses when continuing with work in the face of court proceedings. “If Areva has a sustainable claim for out of pocket expenses against Eskom that is a matter for separate proceedings.”