By Dr Samer Skaik
A project falls behind. The Employer becomes anxious. Somebody suggests that the Engineer should instruct the Contractor to accelerate, and a letter goes out.
What happens next depends entirely on a distinction that is rarely drawn at the time the letter is written, and the cost of getting it wrong runs in both directions. I have seen Employers believe they had purchased acceleration when they had bought nothing at all, and I have seen Contractors treat a routine progress instruction as a blank cheque and spend accordingly.
The provision at the centre of this is Sub-Clause 8.6 in the 1999 editions, renumbered 8.7 in 2017. It is worth being precise about what it does, because it is almost the opposite of what people assume.
What the clause actually gives the Employer
The trigger is that actual progress is too slow to complete within the Time for Completion, or has fallen behind the current programme, for reasons that do not entitle the Contractor to an extension of time. That qualification is the whole clause, and I have italicised it because it is the part that goes missing in practice.
Where the trigger is satisfied, the Engineer may instruct the Contractor to submit a revised programme and a supporting report describing the revised methods it proposes in order to expedite progress. The Contractor then adopts those methods at its own risk and cost.
Read that again, because it is the crux. The clause does not entitle the Employer to demand acceleration and pay for it. It does not create an obligation to complete earlier than the Time for Completion. It obliges the Contractor to produce a plan for recovering a delay that was its own responsibility, and to implement that plan on its own account. Both editions also allow the Employer to recover any additional costs it incurs as a result of the revised methods — extended supervision by the Engineer being the obvious example — and I have seen that pursued in some projects I was personally involved in.
So what the Employer gets is a recovery plan and a paper trail. That is genuinely valuable. It is not acceleration.
The mistake that creates a claim
Here is the sequence I see often, and it costs Employers a great deal of money.
The project is behind. The reasons are mixed — some Contractor performance, some late Employer decisions, an unresolved extension of time application sitting on the Engineer’s desk for several months. Rather than determining the extension of time application, the Engineer issues an instruction under the rate of progress clause requiring the Contractor to recover the delay at its own cost.
The Contractor now faces a choice it should not have to make. It can refuse, and risk being in breach and exposed to delay damages it believes it should not owe. Or it can accelerate, incur the cost, and argue later that it was constructively forced to do so because its legitimate extension of time was never determined.
That second route is the constructive acceleration argument, and while its reception varies considerably between jurisdictions, the factual pattern that supports it is exactly the one just described: an unresolved entitlement to time, combined with pressure to complete by the original date or a date close to it. An Employer that instructs recovery while sitting on an extension of time application is manufacturing the strongest version of the case against itself..
The lesson is unglamorous but absolute. Resolve the time position first. An instruction under this clause is only sound if the delay genuinely does not attract an extension, and you cannot know that while the application is undetermined. A determination process is the one of the places where letting it drift is most expensive.
If you actually want acceleration, buy it
The FIDIC forms contain no acceleration clause. There is no explicit mechanism by which an Employer can simply instruct the Contractor to complete earlier than the Time for Completion and pay for the privilege. That absence surprises people and it is worth stating plainly.
Two routes exist in practice. The first is the variation machinery: an instruction to change the sequence or timing of the works under Clause 13 is capable of being a variation, valued accordingly. That works, but it needs to be framed and valued as a variation from the outset rather than reconstructed as one afterwards.
The second, and in my view better, route on any substantial recovery is a standalone acceleration agreement. Scope, target date, method, price, and — critically — what happens to the parties’ existing positions on delay and entitlement if the target is missed. Most acceleration agreements might fail at that last point. They are drafted as though acceleration will succeed, and when it does not, the parties discover they have added a dispute rather than resolved one.
What the revised programme and report should contain
Assume the instruction is properly given. What should come back?
The clause asks for two things and both are usually delivered badly. The revised programme should show how the Contractor proposes to complete within the Time for Completion, with logic that actually supports the recovery rather than a compressed bar chart that assumes productivity nobody has ever achieved on the project. The supporting report should describe the methods — additional shifts, additional crews, resequencing, plant, off-site prefabrication — and should be specific enough that an Engineer can assess whether the plan is credible.
What arrives instead, very often, is a programme with the same activities squeezed into fewer weeks and a covering letter of one paragraph. That satisfies nobody. It gives the Employer no comfort and it gives the Contractor no record of having engaged seriously, which matters if the recovery fails and the parties end up arguing about who was realistic.
Engineers should also resist the temptation to approve the revised programme. The clause does not ask for approval and an approved recovery programme creates the same adoption problem discussed in relation to the initial programme submission. Comment on credibility, identify what is not supported, and leave the responsibility for the plan where the contract puts it.
Where the Contractor gets it wrong
The failure is not one-sided, and I want to be even-handed here because Contractors lose real money on this too.
A Contractor that receives a rate of progress instruction and treats it as an acceleration instruction — mobilising additional resources, working double shifts, importing plant — without ever putting the Employer on notice that it regards the instruction as compensable is in a very weak position later. The expenditure is real, the records may be good, and none of it matters much if the first written suggestion that somebody else should pay comes eighteen months afterwards.
If you believe an instruction is wrongly given because the delay is excusable, the response is not to comply silently and argue later. It is to say so at the time, in writing, identifying the outstanding extension of time application and reserving your position, and then to decide what to do commercially. That letter takes twenty minutes and is frequently the difference between a recoverable cost and an unrecoverable one.
A short checklist
Before an instruction under this clause goes out, four questions.
Is the delay genuinely non-excusable, and has every outstanding extension of time application been determined? If not, stop and determine them first.
Does the letter ask for a revised programme and a methods report, which is what the clause provides, or does it use the language of instruction to accelerate, which is what the clause does not provide?
Is it clear on its face that the revised methods are at the Contractor’s cost, so that no ambiguity is left for a later constructive acceleration argument to occupy?
And if what the Employer actually wants is earlier completion rather than recovery of Contractor-caused delay, has anyone said so out loud, so that it can be procured properly instead of attempted through a clause that was never designed for it?
That last question is the one worth asking first. A surprising amount of the money spent arguing about acceleration is spent because nobody was willing to say plainly, at the start, that the Employer wanted something the contract does not give it for free.
Related reading: Variations Under FIDIC Clause 13, The Engineer’s Role in Dispute Prevention, and Decoding Concurrent Delay.
Similar Posts:
- To accelerate or not? That is the contractor’s question
- Contractor woes
- Extension of time claims
- Time At Large
- Who owns the float period?
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