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Delay and Disruption - Acceleration

Daniel Atkinson 21 November 2002

KEYWORDS: Delay and Disruption - Acceleration, constructive acceleration,


deciding when to accelerate, reducing delays, acceleration measures, effect of
acceleration, Glenlion Construction Ltd - v - Guinness Trust (1987) 39 BLR 89,
obligation to accelerate, John Barker Construction Ltd v London Portman Hotel Ltd
(1996) 83BLR35, Ascon Contracting Limited -v- Alfred McAlpine Construction Isle of
Man Limited (1999), Motherwell Bridge Construction Limited v Micafil
Vakuumtecchnik (2002) TCC 81 CONLR44, acceleration agreements, Lester Williams
v Roffey Brothers & Nicholls (Contractors) Ltd (1989) 48BLR69, Amec & Alfred
McAlpine (Joint Venture) v Cheshire County Council (1999)BLR303, express terms of
standard forms, FIDIC 1998, ICE 7th Edition, ECC 2nd Edition, IChemE Red Book,
MF/1 (Rev 4) 2000, JCT 1998, JCT 1998 With Contractor's Design, JCT 1998 Prime
Cost Contract, IFC 1998, JCT 1998 Minor Works, CECA Blue Form 1998, DOM/1,

The Problem

Measures

Agreements

Effects

Obligation
See also Constructive
Acceleration

Claims

EXPRESS TERMS OF STANDARD FORMS


FIDIC 1998

ICE 7 Ed

JCT 1998 WCDJCT 1998 PC

ECC 2 Ed

MF/1 Rev 4

IChemE Red
Book

JCT 1998

IFC 1998

JCT Minor

CECA Blue

DOM/1

SUMMARY
Acceleration frequently involves a change in the allocation of resources which may
lead to loss of productivity. If the entitlement to extension of time is uncertain, the
contractor is faced with a difficult choice. The obligation to accelerate is examined
together with terms of standard forms.

1. The Problem of Deciding When to Accelerate

"Acceleration" is not a legal term. Its natural and common meaning is to "bring about in an
earlier point in time" (Webster Dictionary), which is a comparative measure. There must be
some benchmark against which to measure the acceleration. In construction, the main issue is
the date against which progress is measured. There are two situations relating to the overall

works as opposed to discrete areas or sections of work.


The first acceleration situation arises if the contractor is required to complete earlier than the
contract date fixed for completion. The main issue will be whether this requirement is a
variation to the contract. In practice the issue will turn on whether it can be established that
an instruction was given in those terms. A complication is whether the failure of the
Architect/Engineer to properly grant an extension of time, or simply the timing of the
ascertainment of the extension of time due, together with pressure from the Employer or his
agents for the contractor to complete by the then fixed date for completion, is effectively an
instruction to accelerate. This is the issue of the "constructive order" and of "constructive
acceleration" and is examined in the Article Constructive Acceleration.

The second acceleration situation arises if the contractor is likely to complete later than the
contract date fixed for completion due to reasons which may not entitle him to an extension of
time. If the contractor is in default then the issue is whether he is under an obligation to
reduce or avoid the effects of the delay including taking acceleration measures. If it is not
clear whether the contractor is entitled to an extension of time, in practice the contractor is
left with the same choice whether or not to accelerate. This is the "temporary default"
problem, in which the contractor, until the extension of time is granted, is in default or likely to
be in default and may decide that the most reasonable action in his commercial interests is to
take acceleration measures rather than incur potential liquidated damages. There is also the
related issue of the extent of the contractors obligation to take measures to mitigate the
consequences of a delay for which he may be entitled to an extension of time and the effect
this has on any entitlement to extension of time and whether he can recover the cost of such
measures and this is examined in the Article Reducing Delays.
2. Acceleration Measures

Acceleration may be achieved by a change in the deployment of resources. In some cases it


may be achieved by simply changing the order or sequence for carrying out the work and may
therefore not cause additional cost. More usual, acceleration is achieved by adopting longer
working hours or additional days of working with the same resources. In many cases
acceleration involves employing resources additional to those originally planned either for the
same hours or days of working, or in additional shifts or days of working.
The possible acceleration measures are in summary:

increased resources to reduce the time taken for critical activities. The increase in
resource may at some level have the effect of reducing productivity and thereby
increasing unit cost of construction. There will normally be an optimum level of resource
for any one activity.

increased man hours is a means of increasing resource input, but will introduce
inefficiency and both quality and health and safety issues.

incentives will motivate labour to increased productivity.

changed method of working may open up additional workforces or workplaces as


well as introducing economies in the use of plant and equipment.

Resequencing work is a fundamental part of managing the progress of the work and
is why float is always required on most of the activities on a project.

3. Effect of Acceleration
When tendering and planning for the efficient completion of the works, Contractors can
optimize resources and progress. The interface between different resources can be properly
managed so that a pattern develops which the workforce can follow with reduced planning, so
increasing productivity.
Most standard form of contract allow the contractor to complete the works before the
completion date. It is not unusual for a contractor to decide once work commences to adopt a
different approach than assumed at tender. He may see advantages in completing early due
to factors which only come to light once more detailed planning is undertaken. In other words
the Contractor may decide to accelerate because he perceives a commercial advantage. This
may create problems for the Employer in supplying the relevant information or completing
other works.

In Glenlion Construction Ltd - v - Guinness Trust (1987) 39 BLR 89 Glenlion were


contractors under JCT 63 for the construction of a residential development for Guinness in
Bromley Kent. The issue which arose was whether Glenlion was entitled to complete the works
before the Completion Date. Glenlion had submitted a programme which showed early
completion.
It was held that it was self evident from Clause 21 of JCT 63 that Glenlion were entitled to
complete before the date of completion. This was so whether or not Glenlion produced a
programme with an earlier date and whether or not he was required to produce a programme.
Whilst Glenlion was entitled to complete before the contractual completion date it was held
that the Guiness was not required to actively co-operate to enable the earlier date to be
achieved but was only required not to hinder completion.

It is suggested that the situation will, however, be different if the programme is incorporated
in the contract as a contract document or if the entitlement under the contract is bound up
with the programme. If the Employer does not wish to take possession of the works early, then
this needs to be dealt with by amendment of the contract terms so that the contractor can
price accordingly.

If acceleration is adopted as a reaction to events which have caused delay, rather than a
planned strategy for optimization of resources, then this will normally result in additional
costs. The late or unplanned timing of acceleration measures will normally mean that the
resources deployed are different to the resources planned, due to lack of availability. The
available additional equipment may operate at less than full capacity, being overcapacity for
the work intended but with the additional hire costs involved. The need to use material more
quickly than planned may result in reduced number of uses such as formwork, which will
increase unit costs. The change in the sequence of working may result in an increased number
of moves and/or distances for plant, such as craneage in piling. Additional resources and out
of sequence working will place additional burden on the management to order materials and

consummables, and increase the supervision required.


Acceleration will affect the pattern of work, and has an effect on efficiency, material delivery,
equipment availability and therefore the cost of the work. In most situations acceleration will
mean carrying out the work at a rate that is less than optimum in terms of cost. Acceleration
in many situations will disrupt the works, affecting smooth trade interfaces and increasing
interference between follow-on operations. In some cases it will mean unplanned access to
working areas, reduced productivity and increase in defects as well as stoppages.

The additional payments for overtime or weekend working do not necessarily result in
increased productivity. Indeed extended overtime and long hours will usually reduce efficiency.
Additional shifts are not always productive. Evening or back shifts and night shifts are more
likely to be less productive than dayshifts, and may create more defects and less safe working.
The out of hours working may increase the cost of delivery of materials, together with the
additional cost of larger stockpile areas. New suppliers may need to be found for the increase
in consumption, which may involve increase in unit costs.
4. Obligation to Accelerate

The Employers remedy for the Contractors breach of contract in failing to complete by the
Completion Date will be damages, whether general damages or liquidated damages. Many
standard forms require the Contractor not only to complete by the Completion Date but also to
proceed regularly and diligently. Many standard forms provide a power for acceleration to be
ordered in the event of the contractors default in progressing with due diligence, without
additional payment. Many standard forms also provide a power for ordering the Contractor to
adopt acceleration measures if it is considered that progress is not in accordance with the
programme, If due to the Contractors default. Such powers do not normally extend to agreeing
to accelerate in the absence of the contractors default, which requires a separate agreement.
If such an agreement is entered into it is important to ensure that the terms relating to
liquidated damages still operate.
In John Barker Construction Ltd v London Portman Hotel Ltd (1996) 83BLR35
Barker were building contractors carrying out refurbishment of works to the London Portman
Hotel. The contract was the JCT 80 Form with quantities. The contract provided for completion
of floors 9 to 11 on 16th July 1994, floors 5 to 8 by 29th July 1994 and floors 2 to 4 by 14
August 1994. Clause 24 provided that liquidated damages would be paid at 30,000 per week
for each section of the contract which was not completed by the specified date. Delays
occurred and it was apparent to all concerned that John Barker was entitled to extensions of
time. After negotiations it was agreed that the work would be accelerated so that all the work
would be completed by 14th August 1994 and John Barker would receive additional payment.
After the acceleration agreement there were further delays and further instructions from the
Architect. One of the issues which arose was the effect of the acceleration agreement on the
sectional completion provisions of the contract in relation to liquidated damages.
John Barker argued that the effect of the acceleration agreement was to dispense with all the
provisions of the sectional agreement supplement, including the provisions for liquidated
damages. It was argued that the substitution of a single date was logically inconsistent with
such provisions having continuing contractual force. This was not accepted. It was common

ground that at the time of the acceleration agreement no-one raised the question of
abandoning the liquidated damages provisions. It was held that it was neither intended by the
parties nor logically necessary that the liquidated damages would no longer apply. It was held
that the provisions of the Sectional completion supplement regarding liquidated damages
were capable of continuing to have contractual force by merely substituting the new date of
26th August 1994 for completion of each Section. The parties intention did not go beyond that.
In Ascon Contracting Limited -v- Alfred McAlpine Construction Isle of Man Limited
(1999) there had been delays due to a number of causes and Ascon the concrete
subcontractor claimed extension of time. It was held that in considering the subcontractors
entitlement to extension of time, that it could not be refused or reduced because of the
possibility of future acceleration. That would impose an obligation on the subcontractor to
incur expense in order to mitigate the consequences of the contractors breaches of contract.
It would also deprive the subcontractors of the opportunity, knowing how much of the current
delay had been allowed, of assessing whether it was necessary to consider incurring
additional expense in accelerative measures in order to reduce its potential liability in
damages for any disallowed balance, and if so to decide for itself how far it was in its own
interests to incur that expense in the absence of instructions to do so as a variation.
Accordingly Ascon was awarded an extension of time.
It was not in dispute that Ascon was also entitled to damages to the extent of any recoverable
loss which could be established as caused by the period of delay, and a sum was awarded.
Ascon also claimed for loss caused by acceleration measures it had undertaken. His Honour
Judge Hicks QC stated that acceleration had no precise technical meaning. Acceleration which
was not required to meet a contractors existing obligations was likely to be the result of an
instruction from the Employers for which he must pay. On the other hand pressure from the
Employer to make good delay caused by the contractors own default was unlikely to be so
construed. There was no instruction in this case. Ascon was under pressure from McAlpine to
accelerate the works to recover the time lost, but was insisting that it was not going to pay for
acceleration. Ascons claim on that basis did not therefore succeed.
Ascon claimed that it allocated additional resources, worked longer hours, worked seven days
per week and purchased and supplied duplicate plant and equipment. Ascon claimed that
these acceleration measures were taken in order to mitigate the delays caused.

It was held that there could not be both an extension to the full extent of the Employers
culpable delay, with damages on that basis, and also damages in the form of expenses
incurred by the way of mitigation, unless it was alleged and established that the attempt at
mitigation, although reasonable, was wholly ineffective. Ascon had not put its case in that way.
It contended that the work was indeed completed sooner than it would have been in the
absence of the accelerative measures. The mitigation claim wholly failed at the outset and the
acceleration claim also failed.
In Motherwell Bridge Construction Limited v Micafil Vakuumtecchnik (2002) TCC 81
CONLR44 the issue of acceleration was addressed in a long and complicated judgment by
Judge Toulmin CMG QC.

Motherwell was a subcontractor to Micafil for the construction of an autoclave for the
employer BICC under modified FIDIC forma of contract. The autoclave was a large steel vessel
used in the manufacture of high quality power cables. There were a large number of claims by
Motherwell.
One of two claims was for acceleration costs for the work in relation to on site fabrication for
hours worked by Motherwell's staff in excess of 46 hours for the period from 8 th October 1998
to March 1999. Micafil raised the defence that a term of the contract provided that if
unexpected delays and difficulties occurred, Motherwell was required to provide additional
personnel at no extra cost at the request of Micafil in order to meet the required completion
date. It was held that the delays and difficulties came within the definition of "unexpected".
There was no dispute that Micafil constantly urged Motherwell to increase its resources to
meet the requested completion date. Accordingly Judge Seymour held that Motherwell could
not succeed in recovering damages for this item.
The second acceleration claim is examined in the article Constructive Acceleration
5. Acceleration Agreements

Some standard Forms make provision for the parties to agree to accelerate the works. Even
without such clauses, it is always possible for the parties to agree to vary the contract to their
mutual benefit. If the acceleration is necessary solely due to the contractors default, it may be
argued that the agreement to accelerate has no legal effect for lack of consideration, since the
Employer will simply obtain that which he is already contractually required to receive.
In Lester Williams v Roffey Brothers & Nicholls (Contractors) Ltd (1989) 48BLR69
Roffey was the main contractor for the refurbishment of a block of flats known as Twynholm
Mansions. Williams was a carpentry subcontractor providing labour for the roof and first and
second fix to the flats with a total price of 20,000. The price was too low and a reasonable
price should have been 23,783. This was further aggravated by Williams failing to supervise
his men adequately, which reduced productivity. Williams therefore were experiencing
financial difficulties.
In April 1989 Roffey agreed to pay Williams an additional 10,300 at the rate of 575 for each
completed flat in order to have Williams continue with the works and complete on time. The
carpentry work was on the critical pathe of Roffeys global operations so that failure by
Williams to complete the work in accordance with the Subcontract would lead to Roffey being
liable for liquidated damages for delay under the main contract. The expected payments were
not made by Roffey so that in May 1989 Williams ceased work. Roffey engaged other
contractors to complete the work.
It was argued that the agreement to make additional payments was not legally binding on
Roffey, since they had agreed to pay for work which Williams was already bound to carry out
under the subcontract. There was no consideration.
There was some difficulty in finding consideration. It was held that in this case a benefit was
derived from the agreement by each party and that was sufficient consideration for the
promise to pay additional sums to be binding.

Although not referred to as such, it is suggested that the agreement was in the form of an
acceleration agreement, the delay in this case having been caused by Williams own default.
There may be considerable difficulties in evaluating the additional costs of acceleration and
differentiating those costs from the costs of carrying out the works at the normal pace. Good
records are vital, but it may be appropriate to simply take a broad approach.

In Amec & Alfred McAlpine (Joint Venture) v Cheshire County Council (1999)BLR303
Cheshire appointed the Joint Venture as contractor for construction of the Wilmslow and
Handforth Bypass at Manchester under the ICE 5 th Edition. By the end of 1994 there had been
various delays for which the Joint Venture was not responsible. An acceleration agreement was
entered into for which the joint Venture was paid various sums for completing by 25
1995. Early in 1995 it became clear that there was likely to be another overrun and the Joint
Venture was entitled to further extensions of time. An informal agreement was entered into
inwhich the Joint Venture agreed to use its best endeavours to complete by 25 th October 1995
and Cheshire would pay fair and reasonable recompense for the additional acceleration
measures necessary. The date was achieved.
No specific method of valuation had been agreed and disputes arose as to the method of
valuation, particularly because of delays for which Cheshire was not responsible and because
of the difficulties of separating out the cost of work which the Joint Venture was already
obliged to carry out under the original contract. A method of valuation was decided as a
preliminary issue which was endorsed by the Court.

First the Joint Ventures actual costs (X) were ascertained for the period of acceleration. The
amount that the work carried out in the period of acceleration should have cost was evaluated
(Y). The evaluation took into account all the events that had taken place before
commencement of the acceleration period. The basic calculation of the acceleration costs was
therefore X-Y. Further subtractions were made for factors and events for which the Joint
Venture was liable (A). A further subtraction was the cost of variations ordered in the
acceleration period (B) since these were included in X but not in Y. The prima facie entitlement
was therefore X-Y-(A+B) plus a reasonable amount for overheads and profit. This approach was
adopted because of the difficulties of causation by analysis of particular items of work and of
how time had been saved.
One issue before the Court was the adjustment to be made for payments received by the Joint
Venture from their insurers for events during the acceleration period. The essential question
was whether insurance payments should be taken into account in deciding a fair and
reasonable remuneration. It was held that to allow a deduction would give Cheshire the full
benefit of the insurance cover whereas it was primarily for the benefit of the Joint Venture and
only incidentally Cheshire. Further there would be no double recovery because the principles
of indemnity which lie at the bais of insurance law would require the joint Venture to be
accountable to the insurers for the proceeds of amounts received from Cheshire of the
relevant amounts.
6. Claims for Acceleration
If the contract does not make completion by a particular date or time an obligation under the
contract then the contractor will not be able to make a claim for the cost of acceleration

measures. The only obligation will be to complete within a reasonable time which will involve
optimization of the resources for greatest efficiency and productivity. In most standard forms
the contractor has an obligation to complete by a particular date or within a specified period.
Even with such an obligation, the contractor will have some difficulty in pursuing the
additional costs of acceleration where the contract entitles him to an extension of time for the
delays which have occurred. In the case where the extension of time provisions are not
properly operated, the contractor may consider a constructive acceleration claim, but this is
not without its difficulties.
If the Contractor is ordered to accelerate in the mistaken belief that the delay is due to the
Contractors default, whereas the delay was the responsibility of the Employer under the
Contract, then the Contractor may be entitled to the acceleration costs.
7. Express Terms of Standard Forms

The standard forms generally give the contract administrator power to require the contractor
to revise his programme to re-sequence the works to reduce the effects of delays which are
the contractors default. Some forms also give the contract administrator power to order
acceleration to achieve the completion date if the delay is due to the contractors default. Only
few forms allow the Contract Administrator to negotiate acceleration agreements. Generally
the contractors obligations are to complete by the specified date and also to proceed regularly
and diligently. Breach of this obligation normally allows the Employer to terminate the
contractors employment following notice and failure to remedy the default.
FIDIC 1998
Clause 3.1 of the Red and Yellow Forms provides that the Engineer has no authority to amend
the Contract. There is no power therefore for the Engineer to negotiate an acceleration
agreement for the Employer.

As expected with a modern contract the Contractors obligation under FIDIC Forms is tied into a
programme. Clause 8.1 of the Red, Yellow and Silver Forms requires the contractor to proceed
with the Works with due expedition and without delay. Clause 8.4 of the Red and Clause 8.3 of
the Yellow and Silver Forms requires the Contractor to proceed in accordance with the
programme, subject to his other obligations under the Contract.
Clause 8.6 of the Red, Yellow and Silver Forms gives the Engineer (Employer under the Silver
Form) power to instruct the Contractor to submit a revised programme with revised methods
to expedite progress and complete within the Time for Completion. The power arises if the
actual progress is too slow to complete within the Time for Completion, or if the progress has
fallen or will fall behind the programme. There is no such power if the cause is one of the
matters which entitles the contractor to an extension of time. The Contractor is required to
adopt the revised methods which are stated to include increases in the working hours and/or
increase in resources and/or goods. The revised methods are at the contractors cost and risk
and he is liable for the Employers additional costs incurred in addition to any delay damages.
Clause 15.2(c)(i) of the Red and Yellow Forms and Clause 15.2(c) of the Silver Form allows the
Employer to terminate the Contract if the Contractor fails to proceed with the Works in

accordance with Clause 8, without reasonable excuse, and subject to notice.


ICE 7th Edition
Clause 2(1)(c) provides that the Engineer has no authority to amend the Contract or to relieve
the Contractor of any of his obligations under the Contract, except as expressly stated in the
Contract. Clause 46(3) refers to acceleration agreements. The Employer or the Engineer may
request the Contractor to complete in less than the time or extended time for completion. If
the Contractor agrees, then special terms and conditions of payment are to be agreed before
any acceleration measures are taken.
Clause 14(4) requires the Contractor to submit a revised programme showing such
modifications to the original programme as may be necessary to ensure completion of the
Works within the time for completion, if it appears to the Engineer at any time that actual
progress did not conform with the accepted programme.

Clause 46(1) gives the Engineer power to notify the Contractor that in his opinion the progress
of the Works is too slow to ensure substantial completion by the time for completion. On doing
so the Contractor is required to take such steps as are necessary, and to which the Engineer
consents, to expedite progress so as to substantially complete the Works by the time for
completion. The power arises only if the reason for delay is not an event which entitles the
Contractor to an extension of time. The Contractor is not entitled to any additional payment
for taking the steps. Under Clause 46(2) the may not unreasonably withhold permission to
work on Site at night or on Sundays if requested.
Clause 65(1) allows the Employer to expel the Contractor from site, if the Engineer has
certified in writing to the Employer that despite previous warnings by the Engineer in writing,
in his opinion the Contractor is failing to proceed with the works with due diligence.
ECC 2nd Edition
Clause 30.1 requires the Contractor to do the work so that Completion is on or before the
Completion date.
Clause 32.1 requires the contractor to issue revised programmes regularly and these are
required to show actual progress achieved and the effect on the timing of the remaining work.
The programme is also required to show how the Contractor plans to deal with any delays.
Clause 36.1 gives the Project Manager power to instruct the Contractor to submit a quotation
for an acceleration to achieve completion before the Completion date. The Contractor may
submit a quotation which is required to comprise changes to the Prices and the Completion
date. Alternatively the Contractor may give reasons for not doing so. Clause 36.3 (Clause 36.4
Options E and F) provides that when the Project Manager accepts a quotation for acceleration,
he changes the Completion date (and Prices Options A to D) and he accepts the revised
programme.
One of the secondary options is Option Q which provides for the Contractor to be paid a bonus
for early completion at a specified rate from the date of completion or take-over and the
Completion Date.

Clause 60.1(9) provides that withholding of acceptance is a compensation event, but


expressly states that withholding acceptance of a quotation for acceleration is not a
Compensation Event.

Clause 95.2 provides that the Employer may terminate if the Project Manager has notified that
the Contractor is in default by substantially failing to comply with his obligations and has not
put right the default within four weeks of notification.
IChemE Red Book
Clause 11.1 provides that the Project Manager has full authority to act on behalf of the
Purchaser in connection with the Contract. An exception is Clause 37.9; the Project Manager
does not have power to issue a notice stating the Purchasers election to take-over the Plant,
which the Purchaser may do at any time.
Clause 13.1 requires the Contractor to complete the construction of the Plant within the
periods stated in Schedule 5 (Times and Stages of Completion). The Contractor is also
required to use his reasonable endeavours to perform his obligations in accordance with the
Approved Programme. Clause 13.4 gives the Project Manager power to require the Contractor
either to take steps as may be practicable in order to achieve the Approved programme or to
revise the Approved Programme. In addition, under Clause 13.5 if the Project Manager decides
that the rate of progress by the Contractor will prejudice his ability to complete in accordance
with Cluse 13.1, and this is due to a cause for which the Contractor is responsible, the Project
Manager has power to give notice to that effect. The Contractor must then use his best
endeavours to remedy the potential delay at his own cost. Such action does not affect the
Contractors liability to pay damages for delayed completion (Clause 13.7).
Clause 41.2 gives the Project Manager power to issue a notice that the Contractor is in default
by failing to proceed regularly and diligently with the Works. If the Contractor fails to
commence and diligently pursue the rectification of such default within 14 days after receipt
of the notice or at any time thereafter repeats the default, the Purchaser may forthwith
determine the employment of the Contractor under the Contract.
MF/1 (Rev 4) 2000
Clause 2.1 requires the Engineer to carry out the duties specified in the Contract. If he is
required to obtain prior specific approval of the Purchaser before exercising his duties, by
reason of the terms of his appointment, then these are required to be set out in the Special
Conditions.
Clause 13.1 requires the Contractor to execute the Works and carry out the Tests on
Completion within the Time for Completion. Clause 14.1 requires the Contractor to submit a
programme for approval.

Under Clause 14.5 the Engineer has the power to order the Contractor to revise the
Programme if he decides that progress does not match the Programme. The Contractor is then
required to revise the Programme to show the modifications necessary to ensure completion
of the Works within the Time for Completion. If the modifications are required for reasons for
which the Contractor is not responsible, the Cost of producing the revised Programme is added

to the Contract Price.


Under Clause 14.6 the Engineer has power to notify the Contractor if the Engineer decides
that the rate of progress of the Works is too slow to meet the Time for Completion and that
this is not due to a circumstance for which the Contractor is entitled to an extension of time.
The Contractor is then required to take such steps as may be necessary and as the Engineer
might approve to remedy or mitigate the likely delay, including revision of the Programme.
The Contractor is not entitled to additional payment for taking such steps.
Clause 49.1 allows the Purchaser to give the Contractor 21 days notice of his intention to
terminate the Contract enter the site and expel the Contractor, if despite previous warnings in
writing from the Engineer the Contractor is failing to proceed with the Works with due
diligence.
JCT 1998
The JCT 1998 Forms do not provide clear express provisions for the Architect to require the
Contractor to accelerate in order to achieve the Completion Date. The Contractor is required
under Clause 4.1.1 to comply forthwith will all instructions issued by the Architect, but only in
respect of matters which the Architect is expressly empowered by the Conditions to issue
instructions.
Under Clause 23.1.1 the Contractor is required to regularly and diligently proceed with the
Works and complete on or before the Completion Date. Clause 25 provides for the Contractor
to be granted extension of time for Relevant Events, but importantly Clause 25.3.4.1 requires
the Contractor to use constantly his best endeavours to prevent delay in the progress of the
Works, however caused, and to prevent the completion of the Works being delayed or further
delayed beyond the Completion Date. Further, Clause 25.3.4.2 requires the Contractor to do
all that may be reasonably required to the satisfaction of the Architect to proceed with the
Works.
Clause 27.2.1.2 allows the Architect to give notice of default if before the date of Practical
Completion the Contractor fails to proceed regularly and diligently with the Works. If the
Contractor continues the default for 14 days from receipt of the notice, the Employer may
within 10 days after the expiry of 14 days give notice determining the employment of the
Contractor. If the Employers notice is not issued, then if the Contractor repeats the default
then upon or within a reasonable time after such repetition, the Employer may give notice
determining the Contractors employment, taking effect on the date of receipt of the notice.
JCT 1998 With Contractor's Design
JCT 1998 With Contractors Design is in similar terms to JCT 1998 and similar considerations
apply, except that the Employer administers the contract instead of the Architect under JCT
1998.
JCT 1998 Prime Cost Contract
The JCT 1998 Prime Cost Contract is similar in structure to the JCT 1998 Form and similar
considerations apply. There is no clear express provision for the Architect to require the
Contractor to accelerate in order to achieve the Completion Date. The Contractor is required

under Clause 3.3.2 to comply forthwith will all instructions issued by the Architect, but subject
to reasonable objection under Clause 3.3.3 and subject to request for authority under Clause
3.3.5.
Under Clause 2.1.1 the Contractor is required to regularly and diligently proceed with the
Works and complete on or before the Completion Date. Clause 2.5 provides for the Contractor
to be granted extension of time for Relevant Events, but importantly Clause 2.5.4 requires the
Contractor to use constantly his best endeavours to prevent delay in the progress of the
Works, however caused. Further, Clause 2.5.4 requires the Contractor to do all that may be
reasonably required to the satisfaction of the Architect to proceed with the Works.
Clause 7.2.1 allows the Architect to give notice of default if before the date of Practical
Completion the Contractor fails to proceed regularly and diligently with the Works. If the
Contractor continues the default for 14 days from receipt of the notice, the Employer may
within 10 days after the expiry of 14 days give notice determining the employment of the
Contractor. If the Employers notice is not issued, then if the Contractor repeats the default
then upon or within a reasonable time after such repetition, the Employer may give notice
determining the Contractors employment, taking effect on the date of receipt of the notice.
IFC 1998

The IFC 1998 is similar in structure to the JCT 1998 Form and similar considerations apply.
There is no clear express provision for the Architect to require the Contractor to accelerate in
order to achieve the Completion Date. Under Clause 2.1. the Contractor is required to
regularly and diligently proceed with the Works and complete on or before the Completion
Date. Clause 2.3 provides for the Contractor to be granted extension of time for specified
events, but importantly the Contractor is required to use constantly his best endeavours to
prevent delay and to do all that may be reasonably required to the satisfaction of the Architect
to proceed with the Works.
Clause 7.2.1 allows the Architect to give notice of default if before the date of Practical
Completion the Contractor fails to proceed regularly and diligently with the Works. If the
Contractor continues the default for 14 days from receipt of the notice, the Employer may
within 10 days after the expiry of 14 days give notice determining the employment of the
Contractor. If the Employers notice is not issued, then if the Contractor repeats the default
then upon or within a reasonable time after such repetition, the Employer may give notice
determining the Contractors employment, taking effect on the date of receipt of the notice.
JCT 1998 Minor Works
The Contractor is required to forthwith carry out the instructions of the Architect under Clause
3.5. There is no clear express provision for the Architect to require the Contractor to
accelerate in order to achieve the Completion Date. Clause 1.1 requires the Contractor to
carry out and complete the Works with due diligence. Clause 7.2.1 allows the Architect to give
notice of default if the Contractor fails to proceed diligently with the Works. If the Contractor
continues the default for 7 days from receipt of the notice, the Employer may give further
notice determining the employment of the Contractor.

CECA Blue Form 1998


Clause 7(2) gives the Contractor under the Subcontract the same powers as the Engineer
under the main contract, which under the ICE 7 th edition will include the powers under Clause
46 for acceleration. Clause 7(1) requires the Subcontractor to comply with all instructions and
decisions of the Engineer which are notified and confirmed in writing by the Contractor.
Clause 6(1) requires the Subcontractor to proceed with the Subcontract Works with due
diligence and without delay except as expressly sanctioned or ordered by the Contractor or as
may be wholly beyond the control of the Subcontractor. The Subcontractor is required to
complete within the Period for Completion specified in the Third Schedule.
Clause 17(1)(b) allows the Contractor by written notice to determine the Subcontractors
employment if the Subcontractor fails to proceed with due diligence after being required in
writing to do so by the Contractor.
DOM/1
Clause 11.1 requires the subcontractor to complete the Subcontract Works and reasonable in
accordance with the progress of the Works. The Subcontractors entitlement to extension of
time is subject to the proviso in Clause 11.8 which requires the Subcontractor to use his best
endeavours to prevent delay in the progress of the Subcontract Works however caused and to
prevent any such delay resulting in the completion of the Subcontract Works being delayed
beyond the period for completion. The Subcontractor is required to do all that may be
reasonably required to the satisfaction of the Architect and the Contractor to proceed with the
Subcontract Works.
Clause 29.2.1.2 allows the Contractor to give notice of default if before the date of Practical
Completion the Subcontractor fails to proceed regularly and diligently with the Subcontract
Works. If the Contractor continues the default for 10 days from receipt of the notice, the
Contractor may within 10 days after the expiry of 10 days give notice determining the
employment of the Subcontractor. If the Contractors notice is not issued, then if the
Subcontractor repeats the default then upon or within a reasonable time after such repetition,
the Contractor may give notice determining the Contractors employment, taking effect on the
date of receipt of the notice.