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13/08/20

What’s the rush all about?

What’s the rush all about? To accelerate or not? That is the question.

To accelerate, or not?
That is the question.


During a construction contract, there will be inevitable delays to the regular progress of works. These delays may be culpable issues of the Contractor, instructions issued by the Client, or external factors such as statutory authority works and weather.

Notwithstanding that the Contractor has incurred culpable delays, their obligation remains to complete the works within the period contained within the Contract, or such other extended period; it must attempt to mitigate these delays and take any actions reasonably required to achieve the completion date. Any costs incurred in undertaking this mitigation are the sole responsibility of the Contractor.

Regardless of delay responsibility, it is generally beneficial for all Parties that the works complete within the contracted period. The Client may need to move into the building on a specific date, where the occupation will be dependent on term or opening times. In this instance, the Client may not want to grant any extension of time and will likely insist that the works are completed within the contract period.

This could be deemed as an implied instruction to accelerate from the Client. If the Contractor acts to accelerate the works, in the belief that additional costs incurred will be reimbursed, he does so at risk and places trust in the Client honouring the perceived agreement to pay for any additional costs.

The Contractor may also choose to accelerate if the Client or Contract Administrator is reluctant, or refusing, to award an extension of time as this will reduce or remove its exposure to damages being levied.

To minimise this risk, it is always recommended that the Contractor seeks agreement from the Client to ensure there is no misunderstanding as to what is being requested. This will also provide an opportunity to give an indication of the projected costs of accelerating the works.

The more commonly used standard forms of Contract include the following provisions for acceleration:

  • JCT Standard Building Contract With Quantities (SBC/Q) 2016 (Schedule 2 Clause 2)
  • NEC3 Engineering and Construction Contract April 2013 (Clause 36)
  • NEC4 Engineering and Construction Contract June 2017 (Clause 36)

The process under SBC/Q 2016 is as follows:

If the Employer wishes to investigate the possibility of achieving practical completion before the Completion Date, he shall invite proposals from the Contractor. The Contractor shall either:

  • Provide an Acceleration Quotation, identifying the amount of time that can be saved and the adjustment to the Contract Sum; or
  • Explain why it would be impracticable to achieve practical completion earlier than the Completion Date.

The Contractor’s quotation shall be generally submitted within 21 days, and remain open for acceptance for not less than 7 days.


If the Employer wishes to accept an Acceleration Quotation, the Architect or Contract Administrator shall confirm an instruction, stating the adjustment to the Contract Sum, the adjustment to the time required for completion and any conditions upon which the quotation was submitted.

If the Acceleration Quotation is not accepted, a fair and reasonable amount shall be added to the Contract Sum in respect of the cost of its preparation provided that it has been prepared on a fair and reasonable basis.

Under both NEC3 and NEC4, the Contractor and the Project Manager may propose to the other an acceleration to achieve Completion before the Completion Date. If the Project Manager and Contractor are prepared to consider the proposed change, the Project Manager instructs the Contractor to provide a quotation.

A quotation for an acceleration comprises proposed changes to the Prices and a revised programme showing the earlier Completion Date and any changes to Key Dates.

The Project Manager replies to the quotation within three weeks with either:

  • A notification that the quotation is accepted; or
  • A notification that the quotation is not accepted and that the Completion Dates and Key Dates are not changed.

The risk under the NEC form of Contract, is that there is the potential to lose further time whilst the formalities are taking place. This could severely impact any potential benefits of accelerating the works. If the project has become time critical, then it would be advisable to push for earlier agreements.

What happens if acceleration measures are instructed and implemented, but the revised Completion Date of the works is not achieved?

The standard forms do not address this situation. They detail the procedures to follow for an acceleration agreement to be made, but not who carries the risk if the earlier completion date is not achieved.

There may be valid reasons why acceleration measures may not work. There could also be other contributory factors that further delay the works after the acceleration agreement is implemented.

Great care is needed when entering into an acceleration agreement. If the Employer wants the Contractor to provide a warranty that the acceleration measures will be successful, it must make this clear to the Contractor when requesting the quotation.

If the Employer is unwilling to accept the cost for the Contractor carrying the risk of acceleration succeeding, then he needs to ensure that the proposed acceleration measures have a high chance of succeeding and that the proposals can be monitored.

In this case, it would be beneficial for greater detail and costs for each and every proposed change to achieve the acceleration, rather than just submitting a lump sum quotation.


To achieve acceleration there are a number of measures that can be adopted. These might include:

  • Extended working hours;
  • Increased resources;
  • Alterations to programme;
  • Introduction of temporary works;
  • Changes to working methods;
  • Changes to design or specification;
  • Work scope changes.

There are pros and cons to each of these measures, and careful consideration should be given to each in order to assess the potential benefits to the project against the additional costs, and negative effects, that could be encountered.

Extending working hours should perceivably increase productivity and progress of the works. However, this will come at an additional cost in the form of incentive payments or overtime. It is also widely acknowledged that extending working hours is not a sustainable solution, which could eventually lead to a reduction in productivity. Site working conditions, health and safety, and planning restrictions may also impact on the effectiveness of longer working hours.

Increasing resources would ordinarily be expected to improve productivity on site. However, there is a finite number of workers that can carry out productive work within a set area. The right level of additional resources needs to be utilised, ensuring that there is enough work to be completed. Productivity could otherwise remain static or, in the worst case, reduce.

Changes to the programme may be considered the simplest option to accelerate the works, as altering the sequencing is relatively simple and may not incur additional costs. However, it may also be one of the least effective methods. An experienced Contractor is likely to have already planned the original works to achieve optimal efficiency, so any change to this sequence is unlikely to achieve significant improvements.

An example of temporary works, such as commencing internal works before the building is fully weather-tight, a temporary roof and elevation sheeting could be proposed, effectively providing an envelope around the building. This solution is rarely 100% effective in the event of bad weather and could have the adverse effect of remedial works being required in the event of water ingress to the building.  Any alterations to the external scaffolding may also be disrupted by the temporary sheeting, and may cause additional delays rather than the expected programme acceleration.

Attempting to change working methods, such as installing heaters, dehumidifiers, etc to speed up the drying of internal finishes can lead to cracking and additional snagging works for the Contractor to complete. Careful consideration should be taken before attempting this method of acceleration.

The drawback to changing the design or specification could be that the Employer receives an alternative product that was not its first choice and also pays additional costs.  This may cause resentment or regret once the works are completed, meaning the Client is not 100% happy with the finished building, albeit the completion date was improved.

Changing the work scope to omit sections of work, or to postpone works until after Practical Completion rarely works. Returning to a completed building risks damaging furniture and finishes to carry out the remaining works, along with the disruption and interruption to the operation of the building. If work sections are omitted, the Contractor may make a claim for loss of profit, if the works are subsequently awarded to another Contractor.

In conclusion, the decision whether to accelerate during the progress of the works needs to be made after consideration of several of the points raised above. There is no simple solution and each project should be viewed individually.


Mark Blackmore, Senior Consultant, Driver Trett UK


 

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