Frequently Asked Questions

We are a contractor currently engaged on an NEC3 ECC Option C (target contract with activity schedule) to complete a project in 24 months. The employer has requested that we complete the project 6 months earlier and asked us to propose acceleration measures, hoping to agree acceleration under clause 36. As we consider that the shortening in time is so significant (from 24 to 18 months), we cannot accept such request by revising the works sequences and programme. After review, we propose that we may complete the project 3 months earlier by changing the works information such as revision of some design and reduction of some works.

We consider that the available acceleration measures will require a change to the works information, such as design revision and scope reduction. Can the project manager instruct us to submit a quotation for an acceleration to achieve early completion before the completion date with changes to the works information as indicated? Also, if clause 36 is inappropriate for us here, what are the available course of actions to instruct early completion with changes to the works information?
The acceleration process in clause 36 is entirely consensual, and it cannot be imposed by either party. The project manager can instruct you to provide a quotation but, if you think it is not practical, you can say so with reasons and decline to provide a quotation, see clauses 36.2. That will be the end of the matter, as the project manager has no powers not to accept your refusal or impose their own terms or quotation.

If you do provide a quotation, there are no rules as how it is calculated and, if it increases your risks, you can make allowance for those risks in their quotation. Once received, the project manager can either accept or not accept your quotation. If they accept the quotation, the prices, completion date and key dates (if applicable) are changed, see clause 36.3 in Option C. If the project manager does not accept the quotation, that is the end of the matter and the completion date is not changed. The contract does not allow the project manager to impose an earlier completion date or change the prices in these circumstances.

In practice the project manager and contractor will often negotiate once the quotation is provided, to see if agreement can be reached, rather than not accepting it. Once agreed, the contractor formally re-submits the agreed quotation and the project manager immediately accepts it. However, it would be much more sensible in your case to discuss this with the project manager and employer before the project manager actually issues the instruction. You can then raise your doubts as to practicality, rather than them issuing an instruction to provide a quotation and then you refusing to do so.

As to issuing instructions to remove some of the works, these cannot result in the completion date being moved to an earlier date. All that would happen would be an increase in the terminal float, which is owned by you. The wording of clauses 63.3 makes it clear that it only deals with delays in planned completion. If there is no delay, or if the date for planned completion is earlier, the completion date is not changed. Use of clause 12.3 might though be suitable in this instance as you are potentially renegotiating parts of an agreed contract.

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