Back to Basics #5 - Acceleration Under JCT D&B 2016

Acceleration under JCT D&B 2016 – Back to Basics 5

Perhaps one of the most difficult issues to resolve when a Construction Contract over runs or threatens to, is what do you do about it?

One of the options available is for the Employer to accelerate the works.

Under JCT D&B 2016 such acceleration can only be discussed in the context of achieving practical completion before the Completion Date. It cannot be utilised to simply reduce the impact of delays (in this situation the Completion Date must first be amended by awarding an extension of time and then, and only then, acceleration can be considered).

 

Acceleration under the JCT D&B 2016

Acceleration is addressed in clause 4 of Schedule 2 of the JCT D&B 2016.

Clause 4.1.1 of Schedule 2 states that:

“If the Employer wishes to investigate the possibility of achieving practical completion before the Completion Date …” and then later states “… he shall invite proposals from the Contractor in that regard (an ‘Acceleration Quotation’).”

The ‘Acceleration Quotation’ must identify the amount of time that can be saved and the amount of the adjustment to the ‘Contract Sum’ that the contractor requires also the quotation must include direct costs, consequential loss and expense and an allowance for the cost of preparing the quotation - Clause 4.1.2

The contract is prescriptive as to the timescales associated with the ‘Acceleration Quotation’ and its acceptance.

Once requested to provide an ‘Acceleration Quotation’ it should be issued with 21 days (unless this period is adjusted by agreement) – Clause 4.2.1

The time periods for the production and acceptance of a quotation may be varied by agreement. The Quotation must stay open for acceptance for at least 7 days – Clause 4.2.2

The Contractor is not obliged to accelerate or take any steps towards accelerating until acceptance of the quotation is confirmed in writing by the Employer- Clause 4.1.4

 

Acceleration Agreements Outside of the Contract

If the Acceleration is required to simply reduce the impact of delay, or if Schedule 2 has been omitted in the Contract, it does not mean the Employer cannot request that the Contractor accelerates, the Parties are free to reach other agreements outside the original Construction Contract.

It should be remembered that an Acceleration Agreement of this type would be a separate Contract and, as such, could not be incorporated into Adjudication under the original Construction Contract.

 

Typical Acceleration Cost Heads

In addition to the direct cost of the work, acceleration also may result other additional costs all of which should be considered when ascertaining the acceleration costs to be agreed.

Typically, these heads of claim are:

• Additional Labour or Sub-Contractor Costs
• Stacking of Labour/Sub-Contractor Costs
• Overtime Costs
• Productivity Losses
• Additional Plant and Equipment
• Additional Supervision Costs
• Increased Material Delivery Costs
• Increased Overhead Costs

In 2013 Ramskill Martin wrote an Article which considered these losses and the topics above in more detail and this can be found by clicking here.

Ramskill Martin’s Team of Experts can assist with any matters of Contract, Commercial issues or any Programming associated with acceleration of the Works.

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