The CIOB's Complex Projects Contract 2013 (CPC2013) permits employers to manage their own risks in projects which, by their nature, are sufficiently complicated that they cannot be managed effectively by intuition alone. It is intended for use by Government Agencies and companies in a variety of procurement methods (including build only, design and build and turnkey), and envisages the use of bespoke Special Conditions for each job. We explore some of the distinguishing features of CPC2013 here.
CPC2013 requires most communications to be digital, although in some cases communication by the traditional methods is permitted (by mail, or by hand). Security of electronic exchange is managed by a Data Security Manager. Management data is 'published'. This requires the Contractor to transfer the information digitally in native file format not only to the Employer and Contract Administrator but also to the Listed Persons, using an electronic data transfer process. The exchange is achieved by a File Transfer Protocol (which governs how electronic files are uploaded and downloaded) through a Common Data Environment (which permits users to access electronic data held remotely on a server), or by email. The benefit of publication is its transparency: the published data can be easily interrogated, sorted, filtered, checked and compared with other data by the recipients, who can decide for themselves which reports they need to see.
CPC2013 takes the approach that all those who have a continuing design, administrative, or supervisory role need to have access to the same information. This is achieved by defining those persons as Listed Persons. The listed persons will usually include the design team, Project Time Manager, Valuer, and those concerned with quality control, commissioning, project management and data security.
Contractor Design and BIM
CPC2013 provides for Contractor Design of parts (to be defined in the Special Conditions) or the whole of the Works, and provides for design using either Drawings and Specification and/ or a Bill of Quantities, or by use of Building Information Modelling to Level 2 compatible with the recommendations of the UK Government BIM Task Force. CPC2013 is the first standard form of contract to embody the terms necessary for the proper control of design development using BIM.
CPC2013 takes a much more transparent and proactive approach to requests for (and the supply of) information, documents, etc. than other standard form contracts. It deals with the matter in four ways:
- It defines what the Contractor may request
- It states that anything the Employer is to provide under the Contract is to be indicated on a critical path network, either by reference to the calendar date specified or to the logical date according to the specific sequence in which the activity falls
- Anything that cannot be programmed in advance must be requested at least ten Business Days before it is required
- Irrespective of when a request is made, the Contractor may only receive relief or compensation where the operative cause of any delay is the Contract Administrator failing to respond (at the latest) by the date on which the item is actually needed.
Time Risk Management
Most contracts contain little or no means of managing time other than intuition. Underpinning CPC2013's more practical and effective approach to time management is the requirement of a dynamic, critical path network time model (or 'Working Schedule', as it is called). This is published together with a Planning Method Statement which sets out the rationale underpinning the Working Schedule, the assumptions on which it is based and the calculations used in its preparation.
Rarely do Contractors voluntarily embody the effects of their short-term planning in their master programmes, and the consequences of this failure are evident in virtually every dispute over delays. CPC2013 addresses this by requiring the Working Schedule to be in three densities. Low density is for work not expected to be carried out for nine months or more after the data date. In many cases, the long-term work will not have been fully designed and subcontractors not engaged, and accordingly long-term planning must usually be estimated, often on the basis of experience. Medium density is for work intended to be carried out between four and nine months in the future. In this period the work will usually be designed in detail, and subcontractors may be engaged but the resources they intend to make available may not be committed. High density is for work planned to be executed in the next three months. At this density of planning, the design detail must have been completed, the resources made available and the expected productivity must be known, and therefore the duration of the planned activities in this period can be calculated instead of estimated.
Any critical path network that is wrapped up in date or float constraints, negative lag, open ends and other logic-destroying techniques cannot be used for time management, and unless the standard to which it is to be prepared is specified, compliance with the contract cannot effectively be controlled. Accordingly, a default specification for the design, production and maintenance of the Working Schedule is included in the Contract Appendices, and the Working Schedule must also conform to the standards in the CIOB's Guide to Good Practice in the Management of Time in Complex Projects ('the Guide'). On submission, it needs to be checked for compliance by the Project Time Manager and also independently audited from time to time. Within ten Business Days of submittal, it is deemed accepted unless it is rejected or conditionally accepted during that period.
To summarise, CPC2013 has approached the problem of encouraging compliance with the contract provisions for programming by providing a detailed default specification of performance and quality, compliance with which can be independently ascertained. If used correctly in accordance with the Contract, it provides the Contractor with a management tool of unrivalled quality that will reduce their own risk and improve their cash-flow. In the event of non-compliance, the Employer has an alternative means of controlling their risk, and various unwelcome consequences are likely to follow for the Contractor.
Amazingly, no other standard form currently available requires the Contractor to keep anything except records in support of a claim (if requested), and some do not even require that. On this point, CPC2013 is prescriptive: Progress Records must be prepared in a database conforming to the detailed specification (a default for which is provided in the Contract Appendices) and the recommendations of the Guide. The database will be regularly published for acceptance. The Progress Records also need to be checked by the Project Time Manager for compliance, and independently audited from time to time.
Progress update and revision
Apart from not requiring any progress records to be kept, most other standard forms of contract assume the programme will be nothing more than a target against which progress (or lack of it) can be monitored and do not require the programme to be revised or updated to reflect the progress actually achieved. Uniquely, CPC2013 requires the Working Schedule to be regularly updated from the Progress Records and regularly revised and republished with each publication made independently from any impacted schedule; this calculates the effect of progress made in relation to that planned. It also facilitates an auditable trail of cause and effect for the purposes of risk management.
Cost Risk Management
CPC2013 differs from all other currently available standard forms by using the Working Schedule for the project not only for time management but also as a tool to manage costs. Under CPC2013, the Contractor is required to price the Working Schedule so that the values indicated in the Contractor's Pricing Document (and those of any appointed subcontractors) are fairly represented on an activity-by-activity basis in the Working Schedule. Time-related costs such as Preliminaries and Overheads and Profit also have to be priced in levels of effort and logically linked to the activities to which they relate so that the Working Schedule can calculate the financial effect of changes in the duration of the Works (or parts of them).
Predicted out-turn cost
All currently available standard forms leave the management of out-turn cost out of the construction contract, as a matter solely for the Employer and their advisors. In contrast, under CPC2013, when the work is actually carried out, the priced programme is updated with progress data gleaned from quality controlled progress records (including the effects of change). The benefit of this is that at every update the schedule automatically calculates the construction end date and the predicted out-turn cost of the Works. The predicted out-turn cost is calculated as the total cost indicated against all the activities and levels of effort in the latest accepted Working Schedule, adjusted to take account of anything which the Employer is not required to pay for in the Working Schedule.
Under other standard forms, valuation has little to do with progress achieved or the cost of intervening events and nothing at all to do with the programme, which is generally only intended as a time target. Valuation is then managed either by the Contractor presenting their own demand for payment for someone else to check, or an independent valuation is made by the Employer's cost advisor, which the Contractor has limited power to dispute. The primary basis of interim valuation under CPC2013 is the Contractor's updated Working Schedule, indicating, from one update to the other, the quantity and value of work done in the interim period, including the value of variations and the cost of any suspensions of work, as identified in the progress records. This value is set out in the Valuer's statement of Current Value at the intervals indicated in the Appendix.
The current value, at any time, is calculated as the current Predicted Cost of the whole of the Works minus the work not yet done, work done badly, or work and materials which the Employer is not otherwise liable to pay for at that time.
CPC2013 adopts a clearer, more easily understood and flexible approach to the definition of the Employer's risks than is available under other standard forms. The Appendix contains a table in three parts defining the identified risks and, in relation to each, whether the risk relates to time, cost or both.
The first 15 Events are identified as being under the Employer's control and are the Employer's risk relating to both time and cost. The second part contains descriptions of seven occurrences which are not normally within either party's control, the time and/ or cost risks of which can be allocated to either party. The third part provides space for a further 11 project-specific risks to be described by the user, the time and/or cost risks of which can also be allocated to either party according to the commercial risk the Employer and Contractor are prepared to take. Bad weather, for example, referred to in the contract as weather in excess of the 'Predicted Climatic Conditions', can be commercially varied by defining, for the particular project, which climatic conditions are predicted and whether particular conditions in excess of those specified are an Employer's time risk, cost risk or both.
Float and time contingencies
Most other standard forms of contract do not refer to either float or time contingencies. Uniquely, CPC2013 distinguishes between free float and total float (which are defined and which neither party owns) and requires both parties to allow specific time contingencies in the Working Schedule for their own risks. If, by improving progress, either party is able to reduce the time needed for future work, instead of leaving that additional time as float, they may (if they wish) keep that additional time as their own time contingency, to be used in managing their own future risks.
There is no provision in CPC2013 by which the Employer can refuse to accept the completed Works merely because they are completed earlier than the Substantial Completion Date. Thus, if either party does not use the time contingencies that fall on the critical path then, all other things being equal, there will be a reduction in the duration of the Works, an earlier Substantial Completion Date and therefore reduced cost.
To summarise, where the occurrence of a risk would otherwise delay the achievement of a completion date for the extent of the Employer's time contingencies, they avoid the obligation to award an extension of time, and/ or to pay prolongation costs. Where the ultimate aggregate duration of delay to a completion date is greater than the aggregate Employer's time contingency period included on the critical path to the completion date then the Contractor becomes entitled to an extension of time, and where the delay is caused by an Employer's cost risk, payment of disruption and/or prolongation costs.
Most other standard forms of contract make no provision for adequate management of risks which have not yet matured and which may be the subject of an early warning. CPC2013 requires that the parties, Listed Persons and the Contract Administrator are all responsible for issuing early warnings of risks that may occur in the future. Uniquely, under CPC2013, once a risk has been identified, the Contractor has to produce a risk description, an impacted programme and attend a risk management meeting so that the risk, the party responsible and the predicted consequences are properly identified and dealt with transparently and collaboratively before the risk occurs and disrupts the project.
Recovery and Acceleration
Generally, standard forms of contract require the Contractor to mitigate their own delays, but if they don't, they provide nothing by way of sanction other than liquidated damages for delayed completion. Where acceleration is concerned, most contracts that provide for it do so by making it the subject of a collateral contract, without any consequences for failure.
In contrast, in addition to contingency management, CPC2013 provides a number of other powers to overcome or avoid the consequences of a risk event. If the Contractor fails to competently manage their own risks, or if, notwithstanding the absorption of the contingencies, an Employer's risk is still predicted to be likely to cause a delay to completion, the Project Time Manager has to consult with the Contractor and advise the Contract Administrator of which instructions may reasonably be given to the Contractor to:
- reschedule one or more specific activities;
- change the resources; and/or
- take any other action necessary.
The cost of recovery is always the Contractor's risk but the cost of acceleration must be paid for. In effect, once contingencies have expired, the Employer has the further choice of having a delayed completion or paying the price of acceleration to bring the project back on time, or advancing the completion date.
If the Contractor disagrees with the Project Time Manager's opinion of what can reasonably be done to recover or accelerate a project, the Contractor has the right to appeal to Expert Determination within a limited period after the instruction is given. On the other hand, if the Contractor simply fails to follow instructions properly given, CPC2013 also provides the Employer with a variety of alternative ways of protecting their interests.
Extensions of time and compensation
Under CPC2013, there is no scope for an intuitive guess of what constitutes a 'fair and reasonable' extension of time or an 'equitable adjustment'. The time effect of an event is calculated using what is colloquially known as 'time impact analysis' based upon the facts of any delay to progress that has actually occurred. The Contractor's entitlement to time extensions is then calculated using the Working Schedule by reference to the completion date before the addition of the event and that after its addition, the effect of the event being the difference between the two. If the effects are calculated from estimated facts arising out of an early warning then CPC2013 makes provision for any extension of time, granted on the basis of that estimate, to be adjusted later in the light of what actually transpired when the facts are known. Otherwise, extensions of time and disruption are calculated according to the facts of what actually occurred to disturb progress at the time.
Because the high density part of the Working Schedule is calculated by reference to the resources and productivity expected and each activity is priced, where disruption occurs and interferes with productivity, the effect is also calculated from the updated and impacted Working Schedule. And where the completion of a sequence or critical path is linked to Levels of Effort, the effect of any change in the Working Schedule caused by an event will also calculate the difference in site-related costs (Preliminaries), or overheads and profit for the purposes of compensation, to be included in the next statement of Predicted Cost, Current Value and payment notice.
Accordingly, under CPC2013, the Contractor is only entitled to an extension of time if, in all circumstances, that extension is actually needed to relieve the Contractor from the effects of an Employer's time risk event, and they are only entitled to compensation for a loss or expense they have actually suffered as a result of an Employer's cost risk event.
Concurrency is not even mentioned in most standard forms of contract; in CPC2013, Concurrency is defined as occurring in two cases. The first is when a delay to a single activity is caused by two or more causative events, at least one of which is the Contractor's liability and at least one of which is the Employer's. In the second, Concurrency is defined as occurring when a delay to a single activity is caused by one or more causative events at the risk of the Contractor and, over the same period of delay to progress, in whole or in part, a delay to progress is caused to another activity by one or more of the Employer's risk events.
When, at the date upon which the delay to progress occurs, the event is both an Employer's (and Contractor's) time and cost risk and the delayed activity is (or both delayed activities are) on a critical path to a completion date, the predicted delay to completion so caused is deemed to be a case in which the Contractor is entitled to an extension of time, but not compensation.
Where any part of a delay to progress is caused by an Employer's cost risk event so that only entitlement to compensation is a relevant consideration, it is important that the costs which the Contractor wishes to recover are caused by, and are traceable back to, the effect of that Employer's cost risk event. Otherwise, the Contractor is not entitled to compensation.
All standard forms of contract contain processes and procedures for default termination by the parties. CPC2013 is no different in that regard, although under this contract when a notice is given, the defaulting party is entitled to make an offer to rectify the situation before the notice takes effect. There is no provision in CPC2013 for termination on the contentious ground of a failure to proceed 'regularly and diligently'. However, the contract does provide the option to terminate for:
- the Contractor failing to complete the works after a stated limit of culpable delay (for which the Contractor is not otherwise entitled to an extension of time);
- impossibility, illegality or a prolonged suspension of the work (for which the Contractor is otherwise entitled to an extension of time); or
- the convenience of the Employer (in which case the works cannot be recommenced inside 300 Business Days without paying the Contractor their lost profits on the incomplete part).
CPC2013 takes the view that differences of opinion arising during the Contract stage should not remain unresolved until it is too late to do anything about them other than compensate the injured party, but should be brought to the fore immediately and resolved privately, if possible. Where this concerns the rejection or conditional acceptance of a submittal, or the power to issue particular instructions or certificates, the issue must be resolved immediately, or must be submitted for Issue Resolution within five Business Days. If not submitted in this manner, these particular issues are deemed to be agreed and can then no longer form the basis of a dispute. Within five Business Days' notice of an Issue Referral, the Employer's Representative and Contractor's Representative must formally attempt to agree the matter if at all possible. If they have not done so within a further five Business Days (ten Business Days from the notice), the matter is automatically referred to the Principal Expert for Determination.
For any particular issue, the Principal Expert may call on other experts named in the Contract. Where it is necessary to consult another expert not identified, either because they are not available at that time or because none is identified in the appropriate discipline, the Principal Expert may appoint another person if they consider it necessary. For every issue referred to Issue Resolution, the Principal Expert is required to determine:
- Whether the Contractor's submittal properly complies with the Contract, and if not, which term of the Contract has been breached
- Whether the rejection of the submittal, valuation, or measurement, if any, was proper in the circumstances
- Whether the conditions applied to acceptance, if any, would properly have rendered the submittal, valuation, or measurement not in conformance with the Contract
- Whether any conditions applied to acceptance amount to a Variation of the Contract, and if so, what other conditions should reasonably be applied to acceptance
- Whether there are any other questions identified or required by the parties regarding the nature of the Issue.
A Determination becomes legally binding for the parties within 20 Business Days of its issue unless either party gives notice of adjudication or arbitration. If not challenged within the set timescale, a Determination will be enforceable in any subsequent adjudication or arbitration. Also the Principal Expert and/ or any other expert who has contributed to the Determination may be called as a witness, by either party, or the tribunal.
Under CPC2013, unless the parties agree otherwise, any Adjudicator's Decision and/or the Arbitrator's Award is a public document. The purpose of this is three-fold:
- The drafters will be able to correct anything that does not operate as it should more quickly
- The parties will see how others have interpreted particular issues and may learn from that interpretation instead of repeating the fault
- Adjudicators and arbitrators will be encouraged to make better decisions and awards.
Final dispute resolution is by Arbitration according to the rules identified in the Appendix, or if no rules are identified then in accordance with the Arbitration Rules of the London Court of International Arbitration.
Obtaining the Contract
The Agreement and General Index are available in electronic format from www.ciob.org.uk/cpc The Conditions, Appendices and User Notes (which contain a model timeline and 12 flow charts) are available in hard copy from www.ciobstore.com .