WHEN DELAYS OCCUR, CAN A CONTRACTOR BE INSTRUCTED TO ACCELERATE THE WORK TO FINISH ON THE DUE DATE IN LIEU OF BEING GRANTED EXTRA TIME?
Inevitably there are contracts which suffer from delays which pose a threat that the contract competition date will be exceeded.
If the delays are not of the Contractor's own making, then under the provisions of most model forms of building contract, he will be entitled to an extension of time in which to complete the work.
For example, clause 29.0 of the JBCC Series 2000 Principal Building Agreement lists a number of circumstances which may cause delay, ranging from "inclement weather" to any other cause beyond his (the Contractor's) reasonable control, which will entitle him to receive a revision of the date for practical completion, in other words an extension of time.
This is the ONLY provision in the contract dealing with delays.
There is no facility whatsoever for accelerating or expediting the completion of the work and it is important to understand that a Principal Agent who instructs or requests the Contractor to accelerate or expedite the work, even if extra payment is promised, is exceeding the powers given to him under the conditions of contract.
Clause 17.0 of the JBCC Principal Building Agreement limits the powers of the Principal Agent to giving instructions only in regard to the items listed, none of which refer to accelerating or expediting the completion of the works.
To introduce such a provision, after the contract has been entered into would be an attempt to change the conditions of contract, an act which is not possible unless both parties agree and record their agreement in writing as provided for in clause 1.8.
Moreover there is no provision for any adjustment to be made to the contract value or any means of calculating that value which would arise from an instruction to accelerate.
Experience shows that where contractors have been persuaded to forego their entitlement to an extension of the contract period and to accelerate the work to an early finish:
1. The exercise is often not successful because of other subsequent delays.
2. The quality standard of the work deteriorates.
3. Productivity efficiency is lost and costs escalate rapidly.
4. Adjustments to the contract value are rarely adequate to compensate the Contractor and his Subcontractors for the extra costs they incur.
What steps can a Contractor take when he is asked to accelerate or expedite the work in lieu of being granted his entitlement to an extension of time?
1. He should be careful to record that there is no provision in the contract for this event. There is only provision in the contract for an extension of time.
This would amount to a change in the conditions of contract which can only be agreed by the parties themselves and cannot be agree to by the agents of the Employer.
2. He could approach the Employer directly and ascertain whether he in fact does require acceleration to take place.
3. He should be careful to avoid any agreement which leaves the assessment of costs incurred by accelerating at the discretion of the Principal Agent or Quantity Surveyor - there are no rules or provisions in the contract to facilitate this.
He should rather obtain an agreement for a "cost plus" reimbursement or agree a figure "up front". Always remembering that an estimate of the costs of acceleration is invariably inadequate at the end of the day.
4. Great care should be taken in entering into such a venture - expediting or accelerating the work to an early completion can be a very difficult exercise and the effects on management, labour, productivity, quality and costs in general, can be considerable if not traumatic.
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