Acceleration Claims

An acceleration of a construction project defines the situation when work is performed at a faster pace than initially planned. In most cases, acceleration is needed to counteract accumulated delays and to meet the agreed completion date. Acceleration can also occur when the contractor has a direct interest in seeing a project completed ahead of schedule – either by receiving a performance bonus or by relocating resources to another project. The contractor can accelerate work on a project by requesting its workers to perform overtime, by adding a new shift, hiring additional labour, subcontracting, or changing the sequence of activities. Whatever method is chosen, it comes with extra costs that can or cannot be later recovered. Accelerating the project schedule is never free. In addition, when the acceleration is sudden, labour productivity decreases substantially because of fatigue (for current workers required to do overtime) or unfamiliarity to the project (new workers).

There are three types of acceleration that are different based on their causes: Voluntary Acceleration, Directed Acceleration, and Constructive Acceleration.

Voluntary Acceleration describes the situation when the contractor unilaterally takes the initiative of speeding up work on-site, without being previously asked by the owner to do so. This can result in costs that go beyond the original bid and which won’t be recovered unless the client is notified and agrees with the acceleration. Reasons for a client to accept a voluntary acceleration mostly relate to the ability to generate revenue faster by selling, letting, or starting production, which can counterweight the increase in construction costs.

Directed Acceleration is the simplest and most straightforward case of speeding up the construction schedule. The client requests the contractor to accelerate work and pays for the acceleration costs. Such a situation won’t lead to disputes if parties agree on the magnitude of additional costs.

Constructive Acceleration is a situation that is not explicitly voluntary nor directed. Constructive Accelerations typically occur when the contractor is able to invoke an excusable delay such as design changes, added scope, extreme weather, site conditions that differ from bidding specifications, or force majeure events. Owner-caused delays also qualify to justify a constructive acceleration, as well as any other factors beyond the contractor’s control that couldn’t be initially assessed as risks.

Each type of acceleration can lead to an acceleration claim. Voluntary Acceleration claims don’t entitle to extra payment unless agreed with the client. Directed Acceleration claims usually have a predictable outcome, as extra payment is granted to the contractor once an agreement is reached. Constructive Acceleration claims are the ones more prone to create a dispute. The client might argue the contractor wasn’t entitled to accelerate, and the contractor might argue that accelerating the project was the only choice. Acceleration claims must meet a set of preconditions to constitute a reasonable dispute and grant compensation to the contractor. First, the excusable delay must be clearly identified. Delays qualify as excusable only if they impact the critical path of the schedule. Second, the contractor must have made the request for time extension according to contract obligations and in a timely manner to accommodate a response. If the owner denied the request, thus implicitly requiring for project completion according to the initial schedule, it forces the contractor towards a constructive acceleration. The final condition states the contractor must attempt an acceleration to counteract the delays caused by the excusable event and prove such action incurred extra costs.

As always, solving acceleration claims in a mutually advantageous way requires for communication between parties to be prompt and explicit. The difficulty of proving delays and associated acceleration orders highlights once more the importance of proper document management.

To give an example, the contractor is mistaken if they speculate a time extension won’t be granted by the client and act according to that presumption. What might have constituted a valid constructive acceleration becomes a voluntary acceleration in the absence of written client consent. Another common issue regarding acceleration claims is when the granted time extension is insufficient. In that case, a contractor has to prove that the anticipated work requires additional time or additional cost compensation.

Lastly, acceleration is a topic that has to be addressed as early as possible in a complex project. It is always simpler and less disruptive to smoothly speed up works as they encounter the first signs of delays, instead of waiting for them to accumulate.

Dentons advises on ACS Group’s €500 million NEU-CP Program

Dentons, the world’s largest law firm, has advised Spanish-based multinational construction group, Actividades de Construcción y Servicios, S.A. (ACS), on the renewal of its €500 million Negotiable European Commercial Paper (NEU-CP) Program. The NEU-CP program is registered with the Central Bank of France, with the involvement of BNP Paribas, BRED Banque Populaire, Crédit Agricole Corporate and Investment Bank, ING Bank N.V. and Natixis, as dealers for the Notes.

Headquartered in Madrid, the ACS Group is a worldwide leader in construction and services. It is currently the only non-financial issuer with a NEU-CP Program registered with the Central Bank of France.

Dentons’ Capital Markets group in Madrid advised ACS on all aspects of the transaction. Partner Ignacio Corujo led and coordinated the transaction with the support of junior associate Ana Artola.

Ignacio Corujo joined Dentons in January this year to establish and lead the Capital Markets group in Spain. In addition to this most recent deal for ACS, he has closed several high-value debt capital markets deals since his move, including most notably, Grupo Cajamar’s €1 billion issuance of mortgage bonds, as well as Sacyr’s renewal of its €500 million EMTN Program.

About Dentons

Dentons is the world’s largest law firm, connecting talent to the world’s challenges and opportunities in more than 75 countries. Dentons’ legal and business solutions benefit from deep roots in our communities and award-winning advancements in client service, including Nextlaw, Dentons’ innovation and strategic advisory services. Dentons’ polycentric and purpose-driven approach, commitment to inclusion and diversity, and world-class talent challenge the status quo to advance client and community interests in the New Dynamic.

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Former KPMG professional steps down from top Kier role

Professional services firm Kier Group has seen its CEO step down with immediate effect, following a coup in the construction company’s boardroom. Haydn Mursell, an accountant who began his career with KPMG, has been ousted as the company looks to commence a new era of growth, amid a UK construction sector that has struggled in the last year.

The British construction sector has endured a tumultuous 2018. Despite obtaining a sequence of lucrative public sector contracts throughout 2017, Leicester-based firm Carillion collapsed at the beginning of the year, sending shockwaves through the outsourcing sector as a whole.

Amid the chaos which ensued, Capita saw its share value slump repeatedly, while the first quarter of the year saw Serco suffer a 3.9% fall, alongside G4S (-1.1%) and Interserve (-1.9%). This was particularly unhelpful for the beleaguered Interserve, as the group – also best known for its work in construction – was already grappling with poor trading and climbing costs. Kier was also impacted, and the first quarter saw a similar -1.3% fall.

The infrastructure services, buildings and developments and housing group bounced back after that, however. Recent key contract awards included the renewal of a three-year £70 million utility services deal in the South West and being appointed to three lots on the North West Construction Hub three-year £1.5 billion framework. More than £500 million of regional building projects were also secured during November and December, such as a major office development for Argent at King’s Cross in London, a research facility for the Pirbright Institute in Surrey, and a new hospital for Frimley Health NHS Foundation Trust.

The firm’s balance sheet was further strengthened on December 31 after the receipt of the £250 million net cash proceeds of the recent rights issue, and Kier remains on track to report a net cash position at the year-end. Despite this, however, board discontent has reportedly led to the exit of the firm’s long-standing CEO Haydn Mursell.

A chartered accountant, Mursell commenced his career with KPMG in 1995, before working at Bovis Lend Lease and then moving to the construction sector firm Balfour Beatty. He joined Kier in 2010, initially as Group Finance Director, before being confirmed as CEO just two months later. During his time in the role, he took on operational responsibility for the company’s property division.

With his exit from the firm, Kier has commenced the search for its new CEO, in a bid to steer the company into a fresh era of growth. Until this search is completed, Chairman Philip Cox will act as Executive Chair on an interim basis, working closely with the Chief Operating Officer Claudio Veritiero. They will jointly oversee operations for the time being.

Commenting on the move, Cox said, “The board believes that, following the completion of the recent rights issue, now is the right time for a new leader to take Kier forward to the next stage of its development. The board would like to thank Haydn for his contribution during eight years, firstly as finance director and then as Chief Executive.”

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UK entrepreneurs pledge support for construction skills initiative

An initiative designed to attract new talent into the built environment industry has secured the backing of entrepreneurs from three high-profile firms.

Black & White Engineering (B&W), s h e d and James Christopher Consulting are the latest companies to become sponsors of PlanBEE (Built Environment Education), a flexible training programme designed to attract and retain the brightest new talent in the region, plug skills gaps and create a more flexible workforce capable of working across various construction disciplines.

The initiative was launched in 2016 when Gateshead College and Ryder Architecture formed a powerful alliance with a network of architects, designers, contractors and engineering specialists.

Rather than follow a traditional training model where students complete their qualifications while working in one company, PlanBEE gives trainees the chance to work in several companies across the built environment industry.

This radical approach allows entrepreneurs to make their business more competitive and efficient by hiring staff with a more rounded understanding of the industry.

Students on the programme will now benefit from a wider range of expertise with B&W, s h e d and James Christopher Consulting on board.

Launched in the United Arab Emirates in 2007, B&W is a mechanical, electrical, and plumbing (MEP) design consultancy with offices in Dubai, Abu Dhabi, Baku, Manila, London and Newcastle. The company offers design and consultancy services to the construction industry worldwide and has worked on numerous large-scale iconic projects including high-rise towers, data centres, hotels, shopping malls and airports.

Steven Horn, director, in B&W’s Newcastle office, said: “We need to see more young people coming into our industry with knowledge of different areas of the built environment. The way PlanBEE is structured allows us to achieve this. The programme is ideal preparation for how we want to develop our staff, which is to give them opportunities to experience different ways of working on various projects around the world.”

Newcastle-based s h e d is a structural and civil engineering design consultancy that specialises in complex engineering design and Building Information Modelling (BIM), an approach that helps firms risk-assess projects at an early stage by generating intelligent 3D models of buildings before construction takes place.

Marc Horn of s h e d said: “Our expertise in BIM requires us to recruit staff with a rounded understanding of the built environment sector. PlanBEE enables us to achieve this because it moves away from traditional off-the-shelf training initiatives that shoehorn professionals into narrowly defined roles in a single company.”

James Christopher Consulting, an established engineering practice in Gateshead, offers design services to the built environment sector and works on a wide range of projects, from small-scale specialist structures to large-scale commercial developments including land reclamation and drainage works.

Technical director Craig Higgins said: “We were delighted to get involved with PlanBEE and were impressed with this novel approach to recruiting, training and developing staff. There’s a strong emphasis on the application of digital technologies to different types of construction projects and we want our workforce to be at the forefront of this revolution.”

Working with Gateshead College, the PlanBEE group has created a bespoke higher-level skills programme that provides budding professionals with study and off-the-job training at the college’s construction facility on Team Valley, along with a job working with some of the region’s leading companies. It has been tailored specifically for and by the North East construction sector, providing students with a starting salary of £10,700 per year, a professional qualification and a guaranteed job opportunity on graduation.

Established by Ryder Architecture, the initiative has already attracted some high-profile names, including Brims Construction, NBS, Desco (Design & Consultancy), BIM Academy, Sir Robert McAlpine, Xsite Architecture, Robertson, 3e Consulting, Cundall, Arup, FaulknerBrowns, Sadler Brown Architecture and Tolent.

Chris Toon, deputy principal at Gateshead College, said: “It’s great to have three additional sponsors on board. The industry has called for employees to be skilled in a greater range of disciplines, such as surveying, landscaping, architecture and planning, and PlanBEE addresses this fundamental need.

“We are proud to be at the forefront of an industry-led initiative that’s becoming a national exemplar for the recruitment and development of construction employees.”

Mark Thompson, managing partner at Ryder Architecture, added: “It’s fantastic to see the positive impact the programme is making on the students and sponsoring businesses, and we’re delighted to be welcoming the new sponsors to our third cohort.”