NEC ECS: Can the Contractor ask for a quotation (night works) that would generally amount to Acceleration?

We have encountered an Employers Risk and raised the relevant NCE accordingly. The Contractor accepted the NCE and requested a quotation. The quotation showed planned Completion being extended by 4 weeks. This quotation remains un-assessed and the Contractor is still within his assessment period prescribed. We have now received a quotation request from the Contractor and he has asked that we deploy night works and provide the quotation.

My stance is that this is a back door attempt at getting us to accelerate, and not giving us the opportunity at pricing this as acceleration and getting it agreed via acceleration - before we commence! Can the Contractor go down this method in requesting a quote for night works? My concern is that we carry out these works at night and do not get our fair share - or we miss the Key Date and end up in deficit. There are no night works stated in our Works Information or in our programme…

I presume from your comments that the Contractor has instructed the “night works” rather than asked for quotation for them (clause 61.2) prior to instructing. If that is the case then you are correct the Contractor is attempting to instruct you to accelerate which you are not obliged to do.

The Contractor could discuss alternative quotations with you as provided for by clause 62.1 but it sounds like time is of the essence so the Contractor should be requesting a quotation for acceleration.

Agreeing with Dave but if this is a request for a quote then you would be quite right to treat it as a request to accelerate and price (or refuse) accordingly. The Contractor may well just be weighing options and looking for the most economic solution. If there are genuine concerns because night working is different then you could and should talk to the contractor about including assumptions.

In contrast to Dave and Rob below, if the Contractor is instructing you to keep Completion as it is, then I do NOT believe it is ‘acceleration by the back door’, BUT

  • the moment the conversation / instruction moves into talking about bringing forward Completion and hence the Completion Date it is;
  • all other criteria in clause 63 apply about allowances for risk, that the Accepted Programme can be changed etc; and
  • the Contractor needs to follow due process in terms of having a talk with about different ways of dealing with the event before instructing alternative quotations as per clause 62.1. Arguably, you could refuse to do the quotation until he or she has done this.

He has not mentioned a revised Completion Date in his quotation request - he has been silent on this matter. He has acknowledged that using existing logic the Completion Date is 4 weeks later (although not assessed this quotation) and has requested the quotation to allow for night works. It is worth noting that the night works would not just be relevant to Employers Risk giving rise to the 4 weeks delay, but the works as stated in the Works Information (current scope) due to the interlinking of the works.

Jonathon - good question to attract the answers from all our top experts! I will add to the mix as well. I do think this is potentially “acceleration by the back door” but seemingly a legitimate one the contract allows (even if I don’t like/agree the fact it allows it). However, they have not quite followed the rules correctly either.

What should happen is the initial CE is agreed and implemented, and if the movement in planned Completion is agreed as part of the assessment, then Completion Date should then move out as well. Then there should be a separate acceleration quote request to bring Completion Date back again but only if the acceleration quotation is agreed. The intent is that an acceleration quote is either accepted or rejected - there is no contractual mechanism for them to make their own assessment.

The “back door” bit would be if the original CE they also asked for an alternative quote to maintain the original Completion Date. That way they get to include the acceleration costs, but this could then be assessed by the PM as it is a CE quotation. Doesn’t look like they have done it that way, but that is how they COULD have achieved it contractually.