Picture a procurement team that did everything right. They vetted their supplier carefully, negotiated a competitive price, and locked in a delivery schedule aligned to their construction timeline.
Two years later, their shipment sits in a US Customs and Border Protection (CBP) detention facility while their construction crew waits on site. Nobody made a mistake. The landscape moved, and their contract didn’t move with it.
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This story repeats itself across the industry. The trade policy environment facing solar procurement teams has never stood still, but the pace of change has reached a point where contracts written even 12 months ago may contain gaps that leave buyers significantly exposed.
Understanding those gaps requires distinguishing between three legally distinct instruments that procurement teams often conflate — even though each creates a very different kind of risk.
Three instruments, three risks
Antidumping and countervailing duties: Determined through proceedings at the Department of Commerce and the International Trade Commission, AD/CVD duties offset unfair pricing and foreign government subsidies. Over the past decade, AD/CVD has driven more change in solar supply chain geography than any other policy tool — progressively targeting cell and module manufacturing in China, then Southeast Asia, and now further afield.
Tariffs: Trade policy measures imposed by executive or legislative action. The current stack includes Section 201 safeguard tariffs, Section 301 China-origin tariffs, and the Section 122 surcharge active through mid-2026, along with Section 232 steel and aluminium tariffs impacting trackers, racking, and aluminium frames.
The most consequential near-term development is a new Section 232 investigation, which frames polysilicon as a national security commodity and would apply a progressive tariff rate at each stage of the supply chain from raw polysilicon through to finished module. Based on current estimates, Section 232 could add upwards of 15 cents per watt on imported modules — enough to render some import lanes economically unviable.
Uyghur Forced Labor Prevention Act: Unlike a duty or a tariff, UFLPA functions as an import prohibition by stopping the shipment entirely unless the importer is able to show, with clear and convincing evidence, the absence of upstream components made with forced labour. CBP bears no burden of proof. The importer carries it all.
A cycle, not a series of disruptions
These three regulatory tools don’t operate independently. Together, they form a self-reinforcing cycle.
AD/CVD cases chase manufacturing wherever it goes. Once production in a given country reaches sufficient scale, a new case gets filed. Manufacturers relocate to escape the duties — and the cycle starts again. The parties filing these cases command significant resources and clearly intend to follow manufacturing wherever it moves. No short-term resolution appears likely.
Every relocation resets UFLPA risk. When cell manufacturing shifts to a new country, the question of where the polysilicon originated reopens entirely. Buyers previously comfortable with their supplier’s UFLPA compliance suddenly find themselves back at square one.
At Intertek CEA, we tracked a significant spike in CBP detentions of products linked to Ethiopian cell manufacturing in early 2026, exemplifying the polysilicon origination issue. As cell production migrated to Ethiopia in the wake of Southeast Asian AD/CVD exposure, it opened the door to new sourcing relationships. Those new relationships brought renewed uncertainty about whether Xinjiang-origin polysilicon had entered the supply chain.
A new manufacturing location carries no established documentation trail to rebut CBP’s forced labour presumption. Every time the supply chain moves, UFLPA compliance requires proof from scratch.
Section 232, if enacted as anticipated, adds a financial layer to what UFLPA enforces legally — and it targets the same supply chains for the same underlying reason: sourcing relationships that trace back to China.
The supply chains drawing the most UFLPA scrutiny will likely face the highest Section 232 rates as well. A contract written for today’s supply chain geography may already be partially obsolete before product ships.
When a shipment does get detained, the more serious damage is operational, not financial. If the product sits at the border, the construction schedule has already shifted, and no warranty clause or financial remedy restores that lost time.
Where contracts fall short
Most purchase agreements contain gaps across all three instruments. The most common:
Unnamed duties and tariffs. Known AD/CVD rates and tariff obligations frequently get assumed into Delivered Duty Paid (DDP) pricing without appearing by name in the contract. Under a DDP arrangement, the seller takes responsibility for delivering goods to the buyer’s named destination, including paying all applicable duties and taxes. Any duty not explicitly listed as included could create a gap the seller could try to exploit when the invoice arrives.
Expected tariffs not yet enacted. Section 232 has generated enough forewarning that buyers negotiating contracts today should address it now. A contract silent on Section 232 could expose buyers within weeks of signing.
One-sided change-in-law clauses. Many change-in-law provisions cover rate increases but ignore decreases. When tariffs imposed under the International Emergency Economic Powers Act — the broad executive authority used to impose sweeping duties in 2025 — were recently ruled unlawful by a federal court, buyers with downside adjustment language in their contracts could claim the resulting savings. Those without it could not.
Title transfer timing. Many contracts transfer title on shipment or at customs entry — meaning buyers have paid the bulk of the purchase price before learning whether the product will clear a UFLPA review. A detention at that point leaves the buyer financially exposed with no leverage over the seller.
UFLPA audit rights without teeth. Manufacturers routinely accept chain-of-custody audit commitments in vague contract language, then deny access when it matters — citing upstream third parties as unwilling to cooperate. An audit right without a termination provision attached to it amounts to no protection at all.
Building a resilient contract
On duties and tariffs, name every applicable AD/CVD rate and tariff explicitly in the contract as included in the DDP price.
Then address Section 232 before it lands. Options include full seller assumption of the risk, a shared responsibility structure with a cap on the buyer’s share of any rate increase before renegotiation triggers, or a two-price approach — a separate contracted price for US-assembled modules, triggered by a defined milestone such as Section 232 enactment. That last option delivers cost certainty without paying for risk that may never materialise.
Change-in-law clauses should move in both directions. Rate reductions should benefit the buyer proportionally — not simply accrue to the seller.
On title transfer and payment, retain a meaningful holdback until the product clears customs. Keeping financial skin in the game motivates the seller to resolve a detention actively rather than treat a held shipment as a closed order.
Liquidated damages clauses — pre-agreed financial penalties for failing to meet delivery obligations — should explicitly cover schedule delays caused by customs detention. These events shouldn’t qualify as force majeure, the contract term for extraordinary circumstances beyond a party’s control that excuse them from their obligations. Customs detentions represent a foreseeable risk in today’s environment. Contracts should treat them accordingly.
On UFLPA, establish chain-of-custody audit rights before signing, extending from module assembly back to quartz mining, with a termination right if access gets denied. Require the manufacturer to secure consent from each supplier at every stage of the upstream supply chain before contract execution — not after. Consent obtained after signing routinely gets walked back, with third parties cited as unwilling to participate. If that consent can’t be secured before execution, the audit right isn’t real.
Finally, favour suppliers with access to domestic US module assembly capacity — through their own facility or a contracted third-party manufacturer. That capability provides a backstop against both a UFLPA detention disrupting the construction schedule and a Section 232 outcome that makes importing modules economically unviable.
Know who you are contracting with
The provisions above represent a more resilient contract than most in use today. Even with them in place, though, a more fundamental question underlies everything: do you actually know who you are contracting with?
Suppliers genuinely compliant with Foreign Entity of Concern (FEOC) rules — not only on paper, but verifiably at the ownership level — tend to demonstrate clean polysilicon sourcing, welcome chain of custody audits rather than resist them, and position their supply chains to absorb Section 232 scrutiny. In our experience at Intertek CEA, FEOC compliance functions as a reliable bellwether for supply chain integrity across all three instruments discussed here.
That relationship between FEOC compliance and broader supply chain trustworthiness is the subject of the next article in this series. It starts here with a contract built for a landscape that never stops moving.
Jordan Wilson is director of business development at technical advisory firm Intertek CEA.
