Hi Skan,

Yes it is possible defending on their contract. Be aware that prolongation may not be treated only as cost it may also value as variation.

a) If both client and contractor agreed on lump sum acceleration including prolongation cost at contractors risk then that should be covered except if the principal/ client made another cause of delay which is a different issue.

b) It is also possible that both client and contractor agreed on lump sum acceleration with out prolongation cost and value the prolongation as a separate variation to compensate the losses.

On your query I assumed that both parties agreed on lump sum acceleration including prolongation cost which falls on category “a”.

Regards,

Rodel

Yes I totally agree with you Kinley, that is why I mentioned compensation for idle, etc… which is based on preliminaries.

cheers,

Rodel

Hi,

Prolongation costs are more often called “preliminaries”. Usual lump sum contract is governed by the standard contract form where conditions agreed to in the contract mean that many matters are at the contractor’s risk.

However, delay and cost may result from the Principal’s (clients) instruction to delay or vary the work. Delay in getting decisions or information to contractor in sufficient detail to enable the work to proceed or from excessive requests for variation and changes to be made.

As long it is documented, proven, qualifying delays on WUC and client was immediately notified then in these or some other cases the contractor may be entitled to claim compensation for idle, scaffold, plant, cranes, foreman’s time, offices and sheds, disruptions of the program and arrangement, storage and other cost. These claims can be considerable and reinforce the need for contract to proceed without delay and with prompt decision and supply of information and should be able to secure an EOT and protection from damages.

Acceleration is commonly a definitive action or alternative solution to catch up delay, variations and change of scope bound in EOT which is not always the case. It may be a result of work acceleration due to variation or delay approved by the client but accelerated cost paid in progress claim.

Cheers,

Rodel

All,

Ok, at the risk of confusing everyone the issue of prolongation costs was discussed in the following case:

Glenlion v Guinness Trust [1988] 39 BLR 91, QBD

Extracts of judgment:

[I]t has always been the better view that under the JCT form (and indeed under the ICE conditions) a contractor is "entitled" to complete the works earlier than the date for completion. If an employer would be embarrassed by having to takeover work significantly earlier than the date for completion then appropriate provision should be made by way of an amendment to the contract documents so that at the time of tender the contractor can price accordingly. Nevertheless it does not of course follow that the employer is bound by the contractor’s internal pricing, eg if the contractor had priced to complete the works four weeks earlier than the contract period the employer would not necessarily be obliged to pay the contractor the cost of a four week prolongation up to the original date for completion even if it was due to matters for which the employer was contractually responsible, unless perhaps the employer had been made aware before contract of the basis of pricing. He would be entitled to assume that the contractor had priced for all risks that might lead to work taking the full contract period to complete and accordingly that his rates and prices covered the possibility of having to remain on site for the full period. If there was a significant difference in price then one might reasonably expect the contractor to make it clear when tendering and, where appropriate, to submit an alternative tender so that the prospective employer would be aware of the competitive nature of the tender......

[H]owever, it by no means follows that simply because the contractor is entitled to complete the works earlier than the contract completion date that he has a right to do so which gives rise to a corresponding duty on the part of the employer to permit him to do so, and in particular to furnish him with information or otherwise positively co-operate so as to enable him to do so. The contractor is merely free from any contractual restraint and may complete earlier. The employer must not prevent him from doing so but this does not mean that the employer is bound to facilitate in a positive way the implementation of the contractor’s privilege or liberty.....

[t]here was no implied term that the employer would enable the contractor to carry out the works in accordance with a programme which showed a completion date before the date for completion. Earlier in his judgment the judge had referred to the concession which had very properly, and in our view correctly, been made by counsel for the contractor, namely that "both parties at the time of entering into the contract would have been well aware that contractors frequently produce programmes that were over optimistic". The learned judge then drew on the percipient observations of Mr I N Duncan Wallace QC as editor of Hudson’s Building Contracts, 10th Edn (at p 663), and also on the more recent writings of Mr Donald Keating QC in the First Supplement on p 37 of his work on Building Contracts 4th Edn. In adding to p 37 of the principal work Mr Donald Keating says (in our view correctly) that the proposition that it was the contractor who could decide when he should be supplied with instructions was "too wide". He goes on to say: "Such a decision is a factor but not decisive. A contractor cannot unilaterally determine what is a reasonable time." However Mr Keating QC rightly draws attention to the fact that approval of a programme or possibly even acquiescence in the submission of a programme might give rise to the inference that the contractor’s requirements were reasonable for the purposes of determining a question of fact which might arise under the terms of a given contract. However, unless an architect or an engineer is given express authority to agree a programme in such a way as to vary the contract terms, approval or acquiescence in a programme will not of itself alter any of the basic obligations of duties of the parties to a contract, particularly in the light of the observations of Diplock J in Neodox v Swinton & Pendlebury BC, ie that one would be looking at what was reasonable in all the circumstances not merely from the point of view of the contractor but also from the point of view of the architect or engineer, eg a drawing office programme for a complex project.

Hi all,

My view of prolongation cost is a result of qualifying delay on works under contract and entitlement to claim EOT with accelerated cost involve on the assessments of claim and may end up with legislation or arbitration to resolve the issue.

On general condition of contract where “EOT including extent” entitlement was determined and assessed with accelerated cost involve which contribute big losses to contractor then prolongation cost can be claimed together with EOT substantiated by qualifying delay and accelerated cost involved. It varies on the type of contract where a dispute arouses due to accelerated cost burn by the contractors beyond the “WUC” works under contract.

On the case study mention earlier, prolongation of cost may not exist because the accelerated cost was not mention and additional scope may cover the losses of the said subcontractor.

Prolongation cost is determined and assessed based on EOT and cost associated against it. If proven and quantifiable then entitlement for prolongation cost are present on EOT claim.

Most of the cases where prolongation cost become present is lump sump contract and KPI base milestone where the definition of practical completion are ambiguous. If a qualifying delay on WUC was determined and substantiated by EOT with accelerated cost involve on the claim disputing the total lump sump amount. An experience planner determined the EOT and an expert QS or claim consultant will justified the accelerated cost.

Thus it makes sense???

Regards,

Rodel

Skan,

A very good example of prolongation costs (as opposed to an EoT claim) would be the case where a contractor had made it clear that he intended to carry out a contract quicker than the contract period but was then kept on site by additional works but didn’t over run the contract period.