Price escalation clauses in construction contracts

Cost uncertainty for contractors

Unless otherwise agreed, the default position for the risk of delay and cost impact as a consequence of material shortages and inflationary price increases is one which is primarily borne by contractors on projects. For example, liquidated damages could be levied against a contractor in the event that materials are delayed. As a result, contractors may find themselves incurring significant losses by being tied into a long term fixed lump sum or remeasurement contractual arrangements which are no longer financially viable over the course of a project.

If a contractor is forced to continue to perform the contract at a loss, inevitably this is not going to be in the best interests of an employer either. Contractor insolvency part way through a project will result in an employer having to pay more than originally budgeted.

There are however contractual mechanisms available to safeguard a contractor’s position. In particular, we are seeing a rising trend of contractors seeking to include price escalation clauses in construction contracts. The purpose of such a provision is to transfer some of the financial risk on a project so that it is absorbed by the employer.

What are price escalation clauses?

A price escalation clause (or ‘cost escalation clause’) is a contractual mechanism that facilitates the contractor passing on increased overheads to the employer. The contractor retains the ability to adjust the contract price in line with the fluctuating costs of raw materials in the market and other elements of the works at the time.

Price escalation clauses can also account for a decrease in the contract price where costs fall. For this reason a fluctuation provision is also known as a “rise and fall” mechanism. In this way, the employer could benefit from potential cost savings too.

Alternatively, where the cost of materials increases or they are unavailable, an adjustment to the contract price could be agreed by way of a variation but this does not automatically guarantee entitlement to additional costs for a contractor.

Price escalation clauses can be mutually beneficial for both employers and contractors, serving to mitigate the risk of disputes later down the line and in turn preserving amicable commercial relationships between the parties. The inclusion of price escalation clauses in contracts may result in lower bids being tendered for works by contractors from the outset. In the absence of a price escalation clause a contractor may inflate the proposed contract sum to compensate for the lack of cost certainty.

Bespoke drafting to maximise cost effective solutions

Careful consideration should be given to the reasonable risk allocation of costs in construction contracts and to parties’ specific requirements on projects. Clear drafting is essential. In particular, thought should be given to the requirements for notification of contract adjustments such as the method, timeframe and level of supporting particulars required.

Some industry standard form contracts incorporate optional or standard cost saving mechanisms as follows:

• JCT Design and Build contains a fluctuations provision which allows an adjustment to the contract sum for fluctuations in the market price for labour and material. Option A is the standard position and provides changes to contribution, levy and tax fluctuations occurring after the Base Date. If Option B (labour and materials cost and tax fluctuations) or Option C (formula adjustment) are applicable, the relevant option must be stated within the Contract Particulars.

A contractor’s entitlement to price increases for raw materials could also be dealt with as a Relevant Matter under the contract.

• NEC4 Engineering and Construction Contract options A, B, C and D provide a secondary optional provision which caters for the employer agreeing to take on the risk of inflation (Option X1). Option X1 has a wide application but can be restricted to apply to prices of specific raw materials only.

Additionally, clause 16 allows a contractor to suggest an alternative solution i.e. value engineering, which could in turn reduce the cost of the works. The employer determines the amount of value engineering percentage in the tender documents that is used in calculating the reduction in prices.

NEC Option C includes a mechanism in this ‘target cost’ contract where the cost saving or overrun is calculated and split between the parties in accordance with an agreed formula. This is known as the ‘pain/gain share’ mechanism.

In Option E (“Cost Plus”), the default position is that the employer is responsible for the risk of inflation. The contractor is reimbursed for the actual costs it incurs for work carried out plus the allowances for overheads and profit.

In keeping with the collaborative approach of the NEC suite of contracts, a contractor could utilise the early warning process to notify the employer of cost increases, whilst maintaining an amicable commercial relationship. Alternatively, a contractor could claim additional costs by way of a compensation event but there is no automatic entitlement.

• Fidic Red Book 2017 includes a Schedule of cost indexation (a table of adjustment data) and an optional price escalation clause (‘Adjustments for Changes in Costs’) for rises and falls in the cost of labour, goods and other inputs to the works.

• Fidic Silver Book 2017 contains a straightforward fluctuations mechanism: “The amounts payable to the Contractor shall be adjusted for rises or falls in the costs of labour, Goods and other inputs to the Works, by the addition or deduction of the amounts calculated in accordance with the schedule(s) of cost indexation in the Particular Conditions”.

Other contractual or commercial options

Other options for employers and contractors to consider include:

• Suspension or even termination if material prices increase by a certain amount. Appropriate advice should be taken before taking such action. It’s likely to be cheaper and far less disruptive in the long term for an employer to support a contractor rather than terminate the contractor’s engagement.

• Capping an employer’s exposure with a maximum limit of contract adjustments or frequency to prevent contractors having limitless recovery.

• Sourcing materials from alternative suppliers where specified materials are difficult to procure or unavailable or sourcing materials locally to reduce transportation costs.

• Ensuring timelines are more realistic given supply chain challenges.

• Pre purchasing and stockpiling materials at the outset of a project provides greater cost certainty.

• Purchasing materials directly from the supplier can avoid cost mark ups by contractors.

• Bespoke drafting for provisional sums can be included to cover price increases and provide greater flexibility.

Price escalation clauses – how we can help

Walker Morris’ large team of Construction & Engineering experts can:

• Advise on potential issues to avoid such as a lack of certainty in contract pricing and costs;

• Provide bespoke drafting to assist with your contract negotiations;

• Review existing contractual arrangements to advise on whether there is the benefit of an existing price escalation clause and its mechanics in order to be able to enforce it.

Please contact Jessica or any other member of the team if you have any queries about price escalation clauses in construction contracts or would like to know more about any of the points raised in this article.