Articles
Construction Contract & Management Issues
In this 4th quarter 2010 issue of Master Builders Journal for 2011, BK Burns & Ong Sdn Bhd, a subsidiary of BK Asia Pacic, a regional group providing project, commercial and contractual management services joins with Entrusty Group, a multi-disciplinary group, collectively named as BK Entrusty, presents a new series of contract and management articles in construction related areas of project, commercial, contracts, risks, quality and value, on What is head oce overheads? Introduction The calculation of head oce overheads or extended home oce overheads have been puzzling many in the construction industry for a number of years. As we could see later in this article, case laws continue to rene and dene head oce overheads until today. Simplistically, Clark and Lorenzni (1997) cited These xed (overhead) costs include items, such as oce rental, utilities, janitorial services and corporate management. The RICS (2000) dened it as ..expenditure on support services and general running costs, Overheads refer to the contractors general running of business as distinct from site costs of any particular contract. Overheads include, the rental of the contractors building and general support sta, and if they are proved to have been increased by the contracts delay, there is no doubt, in principle, that they can be claimed (Finnegan and Sheeld City Council 1998). This article discusses claims for head oce overheads and the relevant case laws to elaborate the background which dened the methods of calculating before briey moving into contractual denitions and formulas, and proceeding to, illustrating the application of the additional overheads methods discussed in a real project. Contractual DeFinition The term head oce overheads is often not included in both local and international contracts but is usually included as one of the heads of claims under the clauses of Loss and/or Expense. For examples of Head Oce overheads, please refer to the tabulated head oces items in the following section on Application. In Clause 24.1 of PAM 2006, the claim for head oce overheads is implied in ...by matters expressed in Clause 24.3, and the Contractor has incurred or is likely to incur loss
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and/or expense which could not be reimbursed by a payment made under any other provision in the Contract, the Contractor may claim for such loss and/or expense provided... Again, in PWD203 (2007), the same is elaborated under Clause 44 which states If at any time during the regular progress of the Works or any part thereof has been materially aected by reason of delays as stated under clause 43.1 (c), (d), (e), (f ) and (h), and the Contractor has incurred direct loss and/or expense beyond that reasonably contemplated and for which the Contractor would not be reimbursed by a payment made under any other provision in this Contract,.... In CIDB (2000), the head oce overheads claim is embedded within the expressed term of Clause 31, The Contractor shall be entitled to recover Loss and Expense sustained or incurred by him and for which he would not be reimbursed by any other provision of the Contract, however arising as a result of the regular progress and/or completion of the Works or any section of the Works having been disrupted, prolonged or otherwise materially aected by any of the following events:... The term Loss and Expense is dened under Clause 1 (b) as costs of an overhead nature actually and necessarily incurred on the Site... Case Laws Generally, claims for head oce overheads are supported and dened in many case laws, the following are a few of them, which are commonly cited; In Tate & Lyle Food & Distribution and Another v GLC and Another (1982), the Court of Appeal held: the expenditure of managerial time in remedying an actionable wrong can properly form the subject matter of a special head of damages. The onus was on the plaintis to prove the actual loss incurred, percentage gure being unacceptable. As they had not produced evidence as to actual loss they could claim nothing under this head. In Euro Pools v Clydesdale Fabrication (2003), the Scottish Court held: It may not leave the company out of pocket, in the sense of having to pay more to the managing director; nevertheless, the company will inevitably be deprived of part of the services that it would normally expect
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from the managing director. That might mean, for example, that the managing director was unable to devote as much time as would otherwise have been possible to the planning of an important marketing initiative, or the development of a new product, or to general administration of the companys aairs and the supervision of its employees. In any of these cases, the loss of time inevitably represents a loss of services provided by the managing director to the company. Thus in any case the existence of a loss is established. The calculation of head oce overheads was assisted by a few precedence, which claried the application of two approaches; a) formula in the opportunity costs approach and b) the actual costs approach. On overheads, it is worth noting Keating on Construction Contracts (8th edition), states that; If a particular head oce costs are proved to have been increased by a contracts delay, they are recoverable. Examples would be the cost of extra telephone calls and postage in the period of delay... A contractors overhead are commonly taken to be recovered out of income from his business as a whole and ordinarily where completion of one contract is delayed the contractor claims to have suered a loss arising from the diminution of his income from the job and hence the turnover of his business. But he continues to incur expenditure on overhead which he cannot materially reduce or, in respect of the site, can only reduce, if at all, to a limited extent. But for the delay, the workforce would have had the opportunity of being employed on another contract which would have had the eect of contributing to the overheads during the overrun period. There is some authority that a claim on this basis is sustainable. But it is suggested that, in order to succeed, a contractor has in principle to prove that there was other work available which, but for the delay, he would have secured but which in fact because of the delay he did not secure. Keating suggested that in order to succeed in the overheads claim, the contractor has to prove that due to the delay, the contractor was unable to secure another project as his workforce was tied up with the delayed project. In Whittal Builders and Chester-le-Street District Council (1987), Whittal, the deputy ocial referee, Mr Recorder Percival QC in a sub trial said: What has to be calculated here is the contribution to o-site overheads and prot which the contractor might reasonably have expected to earn with these resources if not deprived of them. The percentage to be taken for overhead and prot for this purpose is not therefore the percentage allowed by the contractor in compiling price for this particular contract, which may have been larger or smaller than his usual percentage and may or may not have been realised. It is not that percentage that one has to take for this purpose, but the average percentage earned by the contractor on his turnover as shown by the contractors account. Whittal limits the calculation of overheads and prot to the contractors average percentage contribution to his head oce overhead during the period of delay, based on the contractors annual audited account rather than the allowance made for the same by the contractor at the time of tendering. In J.F. Finnegan Ltd v Sheeld City Council (1988), the Court held: It is generally accepted that, on principle, a contractor who has delayed in completing a contract due to the default of his employer may properly have a claim for head oce or o-site overheads during the period of delay in the basis that the work force, but for the delay, might have the opportunity of being employed on another contract, which would have had the eect of funding the overheads during the overrun period. This case encourages the claimant to accept the concept that the claim of head oce overheads should be worked on the basis that the contribution to the head oce overheads during the time of delay, could have been substituted by contribution for the same from another project had the same head oce resources, equipment, etc been deployed in another project, and had the project in question not been delayed. In Alfred McAlpine Homes North v Property and Land Contractors (1995), the court held: There was no objection in principle to a claim for head oce overheads made on the opportunity costs approach, and further that there was no objection in principle to such a claim being calculated by reference to a formula. It should be noted however that in this case the court in fact refused to adopt such an approach principally because it was the contractors working arrangement that they only ever undertook one construction project at a time and did not undertake another until the project was complete. It was therefore inappropriate to use opportunity costs as the basis of calculation.
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The development of the above case denes another boundary as to when opportunity costs approach should be applied, and vice versa. The opportunity approach which is formulas dependent is permitted by the courts, primarily, during the time of high construction activity, and where business practise in the construction industry such as in Malaysia and Asia in general, which does not permit idling but is likely to continue to undertake new projects despite current delay in existing project(s). In the above case and in the case of Amec Building Ltd v Cadmus Investment Co Ltd (June 1996), the actual costs approach (additional overheads approach) is permitted by using a formula to arrive at the additional overheads. Formula MetHods From the cases above described, it could be noted that apart from the actual costs approach in calculating both the unabsorbed and additional head oce overheads, and amongst many other formulas, the loss of opportunity costs approach could be calculated based on the following three commonly used formulas namely, Hudson, Emden and Eichleay. Hudson which was introduced during the boom of the 1970s simply derived the percentage of overheads and prot of the Contract Sum, proportioned the said to the period in delay over the contract period in weeks. This method is not preferred mainly due to the formulas dependency on the adequacy of the tender and there is possibility of double counting as overheads and prot are already included in the tender sum. On the other hand, the pre-condition for the application of Emden and Eichleay is the availability of other projects during the time of the delay. Eichleay, introduced in the 1960s, based the amount claimed on the delayed contractors total invoices in the contract period over total of all invoices of the organisation during the contract period, and multiplying the afore mentioned, with the ratio of delayed period of which overheads contribution are required over the contract period in weeks. Emden uses actual percentage of head oce overhead and prot multiplied by the contract sum over the contract period in weeks followed by multiplication of days in delay. The following tabulations are the realigned formulas of the three commonly used methods.
Hudson (H.O/P%) x CS x PD 100 CP
Emden H x CS x PD 100 CP
Eichleay 1. (DCI in CP) x (TFOO in CP) = (RO in CP) (AIO in CP) 2. DCROC = PWO CP 3. PWO x PD = Amount Claimed
Hudson HO/P% CS CP PD Emden H CS CP PD
= = = =
Head Oce Overheads and/or Prot Percentage Contract Sum Contract Period (in weeks) Period of Delay (in weeks)
= Head Oce Percentage arrived at by dividing the total overhead cost and prot of the contractors organisation as a whole by the total turnover, all extracted from the contractors year end accounts. = Contract Sum = Contract Period (in weeks) = Period of Delay (in weeks)
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Eichleay DCI in CP AIO in CP TFOO in CP RO in CP DCROC CP PWO
= Delayed Contracts Invoices in Contract Period = All Invoices of Organisation in Contract Period = Total Fixed Overheads of Organisation in Contract Period = Required Overhead contribution from delayed contract in Contract Period = Delayed Contracts Required Overhead Contribution = Contract Period ( in weeks) = Potential Weekly Overhead contribution from delayed contract organisation
Eichleay is more sophisticated and perhaps more precise for the calculation as compared to Emdens and Hudsons. The distinction between Emdens and Hudsons is the calculation of percentage of overheads and prot. In Emdens, as dened in Whittal, the said percentage is the average percentage the contractor in delay is to incur for overheads and prot for all his projects. Unlike Hudsons, where the same percentage is the allowance made by the contractor in delay, for his tender for the specic project. The said percentage in Hudsons, due to the circumstances in the project in delay, may deviate from the contractors norm in pricing his overheads and prot, hence, the inaccuracy. Emdens has improved on this aspect. Eichleay has relatively higher accuracy because not only the calculation is based on the actual invoices for both the total contract sum and all the contract running in tandem in the organisation during the time of the delay, but also, the percentage of overheads and prot is derived from the average of at least three years of the organisations audited account. THe Application This section illustrates the application for claim of the contribution to head oce overheads in a real life project, the delayed Project X. This head of claim was based on the actual costs (additional head oce overheads) approach. Project Xs original commencement and completion were 15 Sep 1996 and 15 Jan 1998, respectively. Interestingly, Project X experienced two stop work orders; on 5 Mar 1997 and again on 14 May 1999. In the rst stop work order, the contractor was told to be on standby but nevertheless, was told to demobilise on 14 Dec 1997 and subsequently, told to remobilise on the 23 Feb 1998. The latter stop work order was the result of a determination letter from the client dated 2 days earlier, 12 May 1999. To add to the complication, the Construction Management and Builders Works were subcontracted from a Main Contractor, Contractor A to a Subcontractor, Contractor B and was consented by the Client, at the outset, leaving specialists and design works to remain with Contractor A; meaning two sets of head oce overheads were to be determined. Due to the double stop start nature of the delay, the following options were considered: a) loss of opportunity approach as a consequent from the rst stop work order coupled with additional costs approach consequent from the second stop work order; b) combining both delays in one approach, additional costs approach; and c) combining both delays in one approach, loss of opportunity approach The period of 1996 to 1999 were a period of construction downturn, work was scarce and therefore the consideration of applying Option (a) and (c) which involved proof of loss of opportunity did not arise. The reasonable approach was to apply Option (b). If the scenario were to be lifted into a period of construction boom, Option (c) as opposed to Option (a) would have been selected as the standby requested by the client in the rst stop work order would have aected site preliminaries more than head oce overheads. However, should it be proven that during the boom, the particular contractor was still deprived of work, hence the head oce overheads would have been under utilised and the rst stop work order would have impacted on head oce overheads, hence Option (b) would have been the choice forward. Contractor As Head OFFice OVerHeads Contribution In the rst set of actual head oce overheads, the Main Contractor, Contractor As overheads were as calculated: The overheads items were extracted from Contractor As Overheads Expenditure in year 1996, 1997 and 1998.
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Based on the above methodology, the above calculation came to:
Year
Planned Cash Flow (NonCumulative)
Planned Expenditure
Planned OHP (7%)
Planned HQ Contribution (a) 64,400.00 161,000.00 193,000.00 418,400.00
1996 4,000,000.00 3,720,000.00 280,000.00 1997 10,000,000.00 9,300,000.00 700,000.00 1998 12,000,000.00 11,160,000.00 840,000.00 Total 26,000,000.00 1,820,000.00
Actual HQ Contribution Dierence (Due to (c) = (a)-(b) Delay) (b) 24,000.00 (40,400.00) 100,500.00 (60,500.00) (193,000.00) 124,500.00 (293,900.00)
The Contract Sum was projected into a cash ow and the expenditure estimated, thereby giving a gross overheads and prot of 7%, totalling RM1,820,000.00. The Head Oce Expenditure in the Income Statements included:
1. 2. 3. 4. 5. 6. 7. 8.
ADMINISTRATIVE EXPENSES Director Remuneration 9. Professional Fees Employee Salary, EPF & Socso 10. Upkeep of Equipments Sta Costs & Expenses 11. Utility Expenses Exchange Lost 12. Bank Charges License Fees 13.Depreciation Other Emoluments 14. Provision for Doubtful Debts Rental & Premises 15. Other & Miscellaneous Expenses Printing & Stationery
Upon review, the following were excluded:
REVENUE 1. Other Operation Income 2. Dividend Income 3. Change in Inventories
COST OF SALES 1. Purchase of Inventories
INCOME FROM OTHER INVESTMENT 1. Interest on Short Term Deposit
Due to the aforesaid delay and disruption, the head oce overheads contribution did not materialised. Using the income statements of account for the period of 1996,1997 & 1998, Contractor A computed and tabulated the respective projection into its audited accounts to compare and evaluate the impact on the head oce overheads contribution. The contribution to the head oce overheads if it had not been for the delay, would have been totalling RM418,400.00. Due to the delay and disruption, the said contribution had been substantially reduced to RM124,500 leaving a shortfall of RM293,900.00 Contractor Bs Head OFFice OVerHeads Contribution In the second set of actual head oce overheads, the Subcontractor, Contractor Bs overheads were as calculated: Again, the overheads items were extracted from the Contractor Bs Overheads Expenditure in year 1996, 1997 & 1998 (inclusive) Income Statements:
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Based on the above methodology, Contractor Bs calculation came to:
Year 1996 1997 1998 Total
Actual HQ Planned HQ Contribution Contribution (Due to (a) Delay) (b) 2,000,000.00 1,780,000.00 220,000.00 200,942.00 100,900.00 6,000,000.00 5,340,000.00 660,000.00 603,045.00 400,500.00 8,000,000.00 7,120,000.00 880,000.00 804,060.00 16,000,000.00 1,760,000.00 1,608,047.00 501,400.00 Planned Cash Flow (NonCumulative) Planned Expenditure Planned OHP (11%)
Dierence (c) = (a)-(b) (100,042.00) (202,545.00) (804,060.00) (1,106,647.00)
Planned Cash ow derived by the QS department based on their cash ow and analysis. The Planned Expenditure were projected and estimated by the QS department. Hence, the projected Gross Overheads and Prot contribution came to RM1,760,00.00. The Head Oce Expenditure in the Income Statements included:
DISTRIBUTION COSTS 1. Advertisement 2. Directors Remuneration
ADMINISTRATIVE EXPENSES 22. Director Remuneration (N2) 46. Newspaper and Periodical 23. Employee Salary, EPF & 47. Printing and Stationery Socso (N3) 3. Directors EPF 24. Sta Amenities 48. Professional Fees 4. Employee Salary 25. Levy 49. Parts and Repair to Machinery 5. Employee Bonus 26. Medical Expenses 50. Photographic Charge 6. Employee Allowance 27. Sta Welfare 51. Religion, Worship and Prayer 7. EPF Contribution 28. Sta Club Expenses 52. Rental of Building 8. SOCSO Contribution 29. Sta Training Expenses 53. Road Tax & Expenses 9. Entertainment 30. Subscription Fees 54. Research & Development 10. Insurance Premium 31. Sports Recreation 55. Secretarial & Registration Fee 11. Sta Amenities 32. Advertisement 56. Stamp postage and Courier Services 12. Medical Expenses 33. Annual Dinner 57. Security 13. Printing & Stationery 34. Assessment & Quit Rent 58. Telephone & Telex Charges 14. Medical Expenses 35. Audit Fee 59. Transportation Charges 15. Sport Recreation 36. Donation & Condolences 60. Accommodation & Travel Expenses 16. Sta Training 37 Exchange Lost 61. Upkeep of Motor Vehicle 17. Telephone and Telex 38. Electricity Expenses 62. Upkeep of Oce Equipment 18. Travelling & Accommodation 39. Entertainment Insurance 63. Upkeep of Oce Premises Premium 19 Upkeep of Motor Vehicle 40 Investment Written O 64. Upkeep of Property 20. Upkeep of Oce Equipment 41. ISO 9002 65. Bank Charges 21. Tender Document & Drawing 42. Legal Fees 66. Bank Guarantee Commission 43. License Fees 67. Depreciation 44. Loss on Disposal of Fix Asset 45. Miscellaneous Expenses
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Upon analysing the data, the following items were excluded:
1. REVENUE 5. OTHER OPERATING INCOME a. Dividend Income a. Rental Income 2. DISTRIBUTION COSTS b. Plant and Machinery Rental a. Provision of Doubtful Debt c. Exchange Gained 3. ADMINISTRATIVE DEBT 6. Gain on Disposal oF Assets a. Allowance of Doubtful Debt a. Insurance Claim b. Bad Debt Written O b. Prot c. Miscellaneous Expenses 7. OPERATING PROFIT d. Provision of Diminution of Investment a. Interest income 4. OTHER OPERATING EXPENSES b. Interest income related a. Exceptional Item c. Tax expense b. Provision of Diminution of Investment c. Allowance for Doubtful Debt d. Bad Debt Written O e. Others f. Allowance of Doubtful Debt g. Impairment of WIP h. Exchange Costs Unrealised (related party) i. Taxation (RPGT not provided in previous year
However, due to the delay and disruption, the aforesaid contribution did not materialise. Using the Income Statement for 1996, 1997, 1998, Contractor B computed and tabulated the respective projection from the audited accounts to compare and evaluate the impact on the head oce overheads contribution. The head oce overheads contribution would have been RM1,608,647.00 had the delays and disruption not occurred but due to the afore-mentioned, the same contribution was much reduced to RM501,400.00. In view of this, the annual shortfall in head oce overhead contribution from the project over the three years, taking the dierence into account were RM1,106,647.00. Summary From the two sets of calculations above, the summary of the total amount claimed based on actual costs approach for the head of claim item of Contribution to Head Oce Overheads would have been: Claim for Head Oce Overheads Shortfall of Contribution to Head Oce Overheads: Contractor A Contractor B The total shortfall of Contribution to Head Oce Overheads RM 293,900.00 1,106,647.00 1,400,547.00
Conclusion With the development of precedence, head oce overheads are also commonly classied into unabsorbed and additional overheads. The former being costs incurred by head oce overheads for the duration of delay for a specic project, where loss of opportunity in winning and working on other projects, could be proven. While the latter is the same but where the loss of opportunity cannot be proven, particularly during recessionary market.
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On the formulas front, despite evolving from Eichleay to Hudson through the renement of various case laws over the years, and the eventual proposal of Actual costs approach to additional overheads, one could not help but notice that the past formula methods applied are still with many shortcomings. For instance the application poses problems such as when considering admissible payment into the calculation, considerations have to be made as to admit the claimed amount, the amount in the application for payment or the certied amount. Furthermore, when considering the percentage of interest to be admissible, the source of fund for each payment is often not clearly segregated. Not only various payments may come from various sources of funds, but each payment may have been paid from multiple sources of fund. Furthermore, there are issues in determining the cut o date to determine the loss, for example, should the calculation be based on the cut o date of paid date, certied payment date or delayed certied payment date. The calculation of the shortfall in Contribution to Head Oce Overheads demonstrated in this Article is not a precise science but probably the best estimate on the nancial loss suered and/or costs incurred. In essence, overheads calculation could be based on formula method but when actual costs are available, it is preferable to use the actual costs, not unless the overheads calculation is for prolongation beyond the practical /substantial completion date. Whichever it may be, there are more rooms for improvement in this area of law and practice in the construction industry. 5. Molloy, J.B. (1998) The calculation of Head Oce Overheads, HKIS Newsletter 7(9) September 1998 issue. RICS (2000) RICS Scotland, Inform 2000, RICS paper, page 2, para. 1,line 1-7. THS Ramsey, V and Furst, S (2008) Keating on Construction Contracts, Sweet & Maxwell, Eighth Edition. Wallace, I.N. Duncan (1994) Hudsons Building and Engineering Contract, Sweet and Maxwell, Eleventh Edition, Volume 1. Winter, J (2001) Head Oce Overhead and Prot, www.bakernet.com, December 2001.
6. 7.
8.
9.
In the next issue of the MBAM journal, BK Entrusty article will deal with a common contractual issue on
Expediting, Accelerating or Mitigating : meaning and implications in construction contracts
REFERENCES/ BIBLIOGRAPHY: 1. Brewer, G (1998) Overhead Claims, Brewer Consulting, www.brewerconsulting.co.uk/ cases/ CJ9828CL.htm, 12 August 1998. 2. 3. Clark, et al (1997) Applied Cost Engineering, Dekker, Third Edition, page 199, para. 2, line 1-2. Jayalath, Chandana Dr. (2009) Recovery of Unabsorbed Head Oce Overheads in a Contract Prolongation http://www.articlesbase.com/ print/1378166, 25 October 2009. Knowles, R (2000) One Hundred Contractual Problems and their Solutions, Blackwell Science, page 136.
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BK Asia Pacic is group of companies incorporated in the Asia Pacic Region providing a comprehensive network of project management, commercial and contract management services to the international construction industry, with oces in Cambodia, China (Hong Kong, Shanghai), Malaysia, Philippines, Singapore, Thailand, Vietnam, United Kingdom and United Arab Emirates. For further details, visit www.bkasiapacic.com.
Entrusty Group is a multidisciplinary group of companies which comprises Entrusty Consultancy Sdn Bhd (formerly known as J.D. Kingseld (M) Sdn Bhd), BK Burns & Ong Sdn Bhd (a member of BK Asia Pacic Ltd, Hong Kong), Pro-Value Management Sdn Bhd (in association with Applied Facilitation & Training, Australia), International Master Trainers Sdn Bhd (in association with Master Trainer of New York), Agensi Pekerjaan Proforce Sdn Bhd, AlphaOmega Matrix and Entrusty International Pte Ltd. The Group provides comprehensive consultancy, advisory and management services in project, commercial, contracts, construction, facilities, risks, quality and value management, cost management, executive search / personnel recruitment and corporate training / seminars / workshops to various industries particularly in construction, petrochemical, manufacturing and IT, both locally and internationally. For further details, visi2 BK Entrusty provides 30 minutes of free consultancy (with prior appointment) to MBAM members in the areas of project, commercial, contracts, risks, quality and value management, For enquiries, please contact HT Ong at BK Entrusty, 22-1& 2 Jalan 2/109E, Desa Business Park, Taman Desa, 58100 Kuala Lumpur, Malaysia. Tel: 6(03)-7982 2123 Fax: 6(03)-7982 3122 Email: htong@entrusty.com.my or htong@bkasiapacic.com Public Seminars
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