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On a construction contract, where the Contractor has fallen behind in their scheduled progress, the Contracting Officer has the ability to order the Contractor to accelerate and to catch back up. This is a rarity, but in fact in some situations it becomes appropriate for the CO to direct the Contractor to accelerate. This is acheived through FAR Clause 52.236-15, Schedules for Construction Contracts.

52.236-15 -- Schedules for Construction Contracts.

As prescribed in 36.515, insert the following clause:

Schedules for Construction Contracts (Apr 1984)

a ) The Contractor shall, within five days after the work commences on the contract or another period of time determined by the Contracting Officer, prepare and submit to the Contracting Officer for approval three copies of a practicable schedule showing the order in which the Contractor proposes to perform the work, and the dates on which the Contractor contemplates starting and completing the several salient features of the work (including acquiring materials, plant, and equipment). The schedule shall be in the form of a progress chart of suitable scale to indicate appropriately the percentage of work scheduled for completion by any given date during the period. If the Contractor fails to submit a schedule within the time prescribed, the Contracting Officer may withhold approval of progress payments until the Contractor submits the required schedule.

b ) The Contractor shall enter the actual progress on the chart as directed by the Contracting Officer, and upon doing so shall immediately deliver three copies of the annotated schedule to the Contracting Officer. If, in the opinion of the Contracting Officer, the Contractor falls behind the approved schedule, the Contractor shall take steps necessary to improve its progress, including those that may be required by the Contracting Officer, without additional cost to the Government. In this circumstance, the Contracting Officer may require the Contractor to increase the number of shifts, overtime operations, days of work, and/or the amount of construction plant, and to submit for approval any supplementary schedule or schedules in chart form as the Contracting Officer deems necessary to demonstrate how the approved rate of progress will be regained.

c ) Failure of the Contractor to comply with the requirements of the Contracting Officer under this clause shall be grounds for a determination by the Contracting Officer that the Contractor is not prosecuting the work with sufficient diligence to ensure completion within the time specified in the contract. Upon making this determination, the Contracting Officer may terminate the Contractor?s right to proceed with the work, or any separable part of it, in accordance with the default terms of this contract.

What I would like clarification on is whether this is done merely by a CO Letter, or if it is done via modification citing the authority of FAR Clause 52.236-15, Schedules for Construction Contracts. The CO essentially directs that the Contractor accelerate performance via 2nd or 3rd shifts, increases of manpower for certain disciplines, etc, and directs the Contractor to keep the Contracting Officer informed of schedule progress and to inform the CO once the Contractor is caught back up. I also understand that the same mechanism would need to be utilized by the CO to direct an end the acceleration once the Contractor is back on schedule or face a claim situation for costs associated with continued acceleration.

Obviously a schedule and the work that is taking place is far more complex than it appears on the surface, and in many cases even though a CO bluntly directs acceleration, there will be areas that are affected by critical path work, ordering and receipt of necessary materials, certain difficult to obtain subcontractor services, serious losses of efficiency of the workforce coupled with significant cost efficiency impacts to the contractor. But what are the potential pitfalls from a litigation standpoint?

Any advice, samples, or information sources that anyone could point to would be greatly appreciated.

Best regards,

-Will

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I think it could cause confusion if exercising the rights of 52.236-15 were communicated by a contract mod. It isn't a change to the terms and conditions, but if it were in a mod, some might interpret it as a change.

I disagree that a seperate communication would be required to end the extra efforts. If the CO makes it clear that the extra efforts are required until the contractor is back on schedule, but are not required once the contractor is on schedule, I think the end is defined.

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I think it could cause confusion if exercising the rights of 52.236-15 were communicated by a contract mod. It isn't a change to the terms and conditions, but if it were in a mod, some might interpret it as a change.

I disagree that a seperate communication would be required to end the extra efforts. If the CO makes it clear that the extra efforts are required until the contractor is back on schedule, but are not required once the contractor is on schedule, I think the end is defined.

I agree with August. There is no need to modify the contract to issue an acceleration directive if the Government's position is that the delays are not excusable. The acceleration directive theoretically doesn't modify or change the contract.

Since the schedule is the responsibility of the Contractor, there is no need to "direct an end the acceleration" once (if) the Contractor regains scheduled progress. The directive should be to take necessary steps to regain schedule with details, if necessary (per the authority of the clause). The Contractor must update the schedule as necessary, per the clause and/or specifications to demonstrate how it will and how it did regain scheduled progress.

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Guest Vern Edwards

You do not modify the contract. You send a written communication (letter or email) and obtain verification of the date and time of receipt. The communication should say something like the following:

Upon examining the schedule dated [insert date] submitted by you pursuant to the Schedules for Constructions Contracts clause, FAR 52.336-15 (APR 1984), I have concluded that your performance is behind schedule by ____ days. Therefore, pursuant to paragraph (B) of the clause, I hereby require that you take the following actions and any other actions necessary to get back on schedule:

  • Pursuant to the terms of the clause, you shall take the prescribed measures and any other measures necessary to get back on schedule at no additional cost to the Government.
    If you believe that my assessment of the status of your performance is in error, or if you believe that the status of your performance is due to excusable delays, you must notify me in writing not later than [insert date] and before you incur any costs to accelerate performance. If you fail to so notify me, then the Government shall not be responsible for any costs that you incur to accelerate based on any error on my part or to recover from excusable delays.
    Not later than [insert date and time], please deliver to me a written description of the actions that you will take, the date on which each such action will commence, and the date by which you plan to be back on schedule.
    Be very careful about ordering acceleration. See, generally,
Administration of Government Contracts, 4th ed., pp. 445 - 456, which covers acceleration. Pay special attention to the section on direct orders to accelerate and requests to accelerate, pp. 449 - 451. Ideally, you would discuss this with the contractor before issuing the order.
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I strongly agree with Vern. I should have warned you earlier, myself. It appears that this is new territory for you.

You need to be certain that the contractor's delays are non-excusable. The delays must not due to government caused or government responsible causes. In other words, ensure first that the contractor is not otherwise entitled to a schedule extension for the delays.

A few examples of excusable delays are unusually severe weather, changes, unreasonable government delays in responding to RFI's, differing site conditions or any other delays for which the contract would provide or allow a time extension.

Also consider concurrent delays - delays by both parties which concurrently affect the schedule. Those delays which are concurrent might entitle a contractor to a time extension.

Bottom line is that the contractor must generally have sole responsibility for the delays that you intend to direct it to overcome, unless you are prepared to pay for all or part of the additional costs associated with the effort.

Nash and Cibinic cover the topic pretty well. I strongly urge you to obtain a copy, even if you have to buy it yourself.

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As always, thank you everyone for the replies, guidance, and references.

Academically (CON 244) we were taught to order an end to the acceleration as a precaution in the event that the contractor initiated a claim for costs incurred from continued acceleration. But it certainly seems that the limits can be framed into the letter quite easily if the CO adequately understands the delay issues.

The reason that a mod came into play was the possiblity that the Contractor would refuse to follow the CO direction to accelerate without a formal modification; but again, what is being changed? Nothing really. My thought is that if the CO letter were ignored then other action would become appropriate.

-Will

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Are you able to say who taught the CON 244? Either the company or the individual?

I've found a wide variety of quality in CON class instructors, and I'd like to steer toward the better quality instructors.

This was DAU San Diego, c. 2005 / 2006. I don't remember the instructor's name, but he was a retired USN O-4. I believe he retired out of NAVFAC as a KO. I have always had a very positive impression of DAU San Diego and the majority of their instructors, this one included.

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Guest Vern Edwards

It is not wrong to say that a CO should notify a contractor when to stop acceleration. But it's not necessary to tell a contractor when to stop if the acceleration order is written so as to make it clear that the contractor is to accelerate only until it is back on schedule. What the instructor may have said (students get that wrong all the time) probably reflects his or her experience at NAVFAC.

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I didn't mean to imply the instructor was wrong with the guidance they gave.

Thanks for the good feedback Will.

I was contemplating starting a new discussion to try to gather feedback on specific training providers, but I hesitate, because I'm not sure what it might do.

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As always, thank you everyone for the replies, guidance, and references.

Academically (CON 244) we were taught to order an end to the acceleration as a precaution in the event that the contractor initiated a claim for costs incurred from continued acceleration. But it certainly seems that the limits can be framed into the letter quite easily if the CO adequately understands the delay issues.

The reason that a mod came into play was the possiblity that the Contractor would refuse to follow the CO direction to accelerate without a formal modification; but again, what is being changed? Nothing really. My thought is that if the CO letter were ignored then other action would become appropriate.

-Will

The problem with the Government formally "ending the acceleration" is that it could make the Government responsible for managing the schedule, determining when the Contractor is back on schedule, then immediately sending notification to stop the acceleration efforts. The Government would have to have near "real time" schedule information, which is almost impossible even for a sophisticated contractor to maintain. Construction contractors don't update the progress schedule daily, except on huge jobs with critical schedule constraints, such as a Nuke or Fossil Fuel Generating Plant shutdown or the like. Most jobs that fall behind schedule don't even have that sophisticated project controls capability. That's often part of the schedule delay problem in the first place. The Government would have to have near immediate access to the schedule by a qualified project controls, schedule specialist - which most government offices don't have.

Keep the Contractor responsible for getting back on schedule and for substantiating that it is back on schedule. It can manage its own costs, resources and processes that way. If the Government doesn't agree that the project is back on schedule it can reassert its authority to direct continuation of acceleration efforts.

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It is not wrong to say that a CO should notify a contractor when to stop acceleration. But it's not necessary to tell a contractor when to stop if the acceleration order is written so as to make it clear that the contractor is to accelerate only until it is back on schedule. What the instructor may have said (students get that wrong all the time) probably reflects his or her experience at NAVFAC.

Okay, from the text of the DAU CON 244, Student Guide (November 2003 edition with Revisions through February 2005) Page 6-48:

Removing the Order to Accelerate:

If the contractor is simply directed to "get back on schedule," the contracting officer must be diligent to remove the order when the contractor has caught up.

It is recommended that the government's original acceleration letter contain the words to the effect of "once caught up, desist the acceleration."

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Excellent advice from many, but here are a couple of points to offer a different perspective from the school of hard knocks.

The word "accelerate" is dangerous when talking about what should be framed in terms of a recovery plan. "Accelerate" is not in the clause, and carries immediate connotations that may tend to invite a claim. Bear in mind that a contractor with performance problems will be looking for every opportunity for relief that does not hit the bottom line, and may be likely to cast blame, sow confusion, and take advantage of every poorly worded client communication. Directing a contractor to "recover and maintain schedule progress" more precisely describes what is contractually required, carries no risky or potentially inappropriate tone, and does not need to be turned off.

Another danger is to direct the contractor how to recover. Even though the clause allows it, directing means and methods should be a last resort. It's more prudent to offer examples of actions or approaches that the contractor should consider in formulating the contractor's recovery plan. These things can be discussed as possible choices for the contractor to make, but the tendency to step in, take charge, and tell the contractor how to fix his schedule problems should be resisted. Directing means and methods of recovery buys a piece of responsibility for the recovery plan and schedule progress or lack of it, which responsibility should remain clearly with the contractor.

My $0.02 worth.

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Guest Vern Edwards

Accelerate is a long established term of art, in and out of government construction contracting. "Recover progress" is not more precise. It's vague, uses two words instead of one, and changes nothing legally.

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