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NEC ECC: Can a PM instruct overtime working outside of the contract hours, and if so does this constitute Acceleration?

+1 vote
A contractor issued a Proposed Instruction for Acceleration to a sub-contractor working under a NEC3 Option B sub-contract, requesting quotations for various working patterns outside of the contract hours. The Contractor has rejected the quotations and has chosen instead to instruct overtime via various PMI's for Weekend Working and the inclusion of a Nightshift. There is at present no accepted program and therefore is no demonstrable movement (bringing forward) of any key dates. The contract contains agreed rates for overtime working.

The key concern here is that by instructing overtime of such a magnitude, the contractor is effectively accelerating and will incur loss of productivity, thickening of prelims and other various risk factors that come with accelerating the works. However, the premium time rates contained within the contract do not allow for such factors.

My question on the above is two fold; Can the PM instruct overtime working not classing it as acceleration? and if so does this have to be costed on a reimbursable basis using the overtime rates as a multiplier for actual hours worked or can it be calculated as fixed price CE?
asked May 9 in NEC3 Compensation Events by Joe.Grice (130 points)  

1 Answer

+2 votes
Acceleration under the contract is under clause 36 and is only for when the Contractor is instructing a quotation to bring forward the Completion Date. The Subcontractor gives a quotation, and the Contractor either accepts it and pays the money but Delay Damages will now be from the revised Completion Date, or rejects the acceleration quote and nothing changes. They cant make their own assessment of the quote.

However, what you have here does not sound like acceleration under the contract. It is more a case of speeding up to mitigate a delay or to maintain the original date, rather than bring an original date forward. The Contractor can instruct this, but they need to be careful as this would sound like a change to the Works Information and therefore a compensation event. Any increase (or decrease!) in costs be working weekends or additional hours will be assessed as a CE - but remembering to take into account the savings as well i.e. saved prelims at end if working weekends means Subcontractor finishes earlier. Contractor therefore has to be very careful when they instruct such things, but they can if the wider picture is more important to them.

Otherwise it should simply be the case that the Subcontractor is motivated to maintain there original date either with incentives, or the fact that delay damages will mean they do not want to be late. Contractor cant put new constraints upon a Subcontractor that they hadn't priced for and expect it to have no impact.
answered May 11 by Glenn Hide (26,000 points)