Delay and Disruption - Acceleration © Daniel Atkinson 21 November 2002
KEYW!D"# Delay and Disruption - Acceleration$ constructive acceleration$ decidin% &'en to accelerate$ reducin% delays$ acceleration measures$ e(ect o) acceleration$ *lenlion +onstruction ,td - v - *uinness rust .1/ 3/ 4,! /$ obli%ation to accelerate$ 5o'n 4arker +onstruction ,td v ,ondon 6ortman 7otel ,td .1//8 34,!39$ Ascon +ontractin% ,imited -v- Al)red :cAlpine +onstruction ;sle o) :an ,imited .1///$ :ot'er&ell :ot'er&ell 4rid%e +onstruction +onstruction ,imited v :ica>$ acceleration a%reements$ ,ester Williams v !o(ey 4rot'ers ? Nic'olls .+ontractors ,td .1// >4,!8/$ Amec ? Al)red :cAlpine .5oint =enture v +'es'ire +ounty +ouncil .1///4,!303$ e@press terms o) standard )orms$ ;D;+ 1//$ ;+E t' Edition$ E++ 2nd Edition$ ;+'emE !ed 4ook$ :B1 .!ev > 2000$ 5+ 1//$ 5+ 1// Wit' +ontractorCs Desi%n$ 5+ 1// 6rime +ost +ontract$ ;+ 1//$ 5+ 1// 1 // :inor Works$ +E+A 4lue orm 1//$ D:B1$
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:easures
A%reements
E(ects
bli%ation bli%atio n "ee also +onstruc +onstructive tive Acceleration
+laims
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;+E Ed
5+ 1// W+D 5+ 1// 6+
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:B1 !ev > 5+ :inor
;+'emE !ed 5+ 1// 5+ 4ook +E+A 4lue
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"::A!Y Acceleration )reFuently involves a c'an%e in t'e allocation o) resources &'ic' may lead to loss o) productivityG ;) t'e entitlement to e@tension o) time is uncertain$ t'e contractor is )aced &it' a diHcult c'oiceG 'e obli%ation to accelerate is e@amined to%et'er &it' terms o) standard )ormsG
1G 'e 6roblem o) Decidin% W'en to Accelerate "Acceleration" is not a legal term. Its natural and common meaning is to "bring " bring about in an earlier point in time" time" (Webster Dictionary), which is a comparative measure. There must be some benchmar against which to measure me asure the acceleration. In construction, the main issue is the date against which progress is measured. There are two situations relating to the overall
wors as opposed to discrete areas or sections o! wor. The rst acceleration situation arises i! the contractor is re#uired to complete earlier than the contract date $ed !or completion. The main issue will be whether this re#uirement is a variation to the contract. In practice the issue will turn on whether it can be established that an instruction was given in those terms. A complication is whether the !ailure o! the Architect%&ngineer to properly grant an e$tension o! time, or simply the timing o! the ascertainment o! the e$tension o! time due, together with pressure !rom the &mployer or his agents !or the contractor to complete by the then $ed date !or completion, is e'ectively an instruction to accelerate. This is the issue o! the "constructive order" and o! "constructive acceleration" and is e$amined in the Article onstructive Acceleration. The second acceleration situation arises i! the contractor is liely to complete later than the contract date $ed !or completion due to reasons which may not entitle him to an e$tension o time. I! the contractor is in de!ault then the issue is whether he is under an obligation to reduce or avoid the e'ects o! the delay including taing acceleration measures. I! it is not clear whether the contractor is entitled to an e$tension o! time, in practice the contractor is le!t with the same choice whether or not to accelerate. This is the "temporary de!ault" problem, in which the contractor, until the e$tension o! time is granted, is in de!ault or liely t be in de!ault and may decide that the most reasonable action in his commercial interests is to tae acceleration measures rather than incur potential li#uidated damages. There is also the related issue o! the e$tent o! the contractors obligation to tae measures to mitigate the conse#uences o! a delay !or which he may be entitled to an e$tension o! time and the e'ect this has on any entitlement to e$tension o! time and whether he can recover the cost o! such measures and this is e$amined in the Article educing Delays.
2G Acceleration :easures Acceleration may be achieved by a change in the deployment o! resources. In some cases it may be achieved by simply changing the order or se#uence !or carrying out the wor and ma there!ore not cause additional cost. *ore usual, acceleration is achieved by adopting longer woring hours or additional days o! woring with the same resources. In many cases acceleration involves employing resources additional to those originally planned either !or the same hours or days o! woring, or in additional shi!ts or days o! woring. The possible acceleration measures are in summary+
increased resources to reduce the time taen !or critical activities. The increase in resource may at some level have the e'ect o! reducing productivity and thereby increasing unit cost o! construction. There will normally be an optimum level o! resourc !or any one activity. increased man 'ours is a means o! increasing resource input, but will introduce ineciency and both #uality and health and sa!ety issues. incentives will motivate labour to increased productivity. c'an%ed met'od o) &orkin% may open up additional wor!orces or worplaces as well as introducing economies in the use o! plant and e#uipment.
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!eseFuencin% &ork is a !undamental part o! managing the progress o! the wor and is why -oat is always re#uired on most o! the activities on a proect.
3G E(ect o) Acceleration When tendering and planning !or the ecient completion o! the wors, ontractors can optimi/e resources and progress. The inter!ace between di'erent resources can be properly managed so that a pattern develops which the wor!orce can !ollow with reduced planning, so increasing productivity. *ost standard !orm o! contract allow the contractor to complete the wors be!ore the completion date. It is not unusual !or a contractor to decide once wor commences to adopt a di'erent approach than assumed at tender. 0e may see advantages in completing early due to !actors which only come to light once more detailed planning is undertaen. In other words the ontractor may decide to accelerate because he perceives a commercial advantage. This may create problems !or the &mployer in supplying the relevant in!ormation or completing other wors. In *lenlion +onstruction ,td - v - *uinness rust .1/ 3/ 4,! / 1lenlion were contractors under 2T 34 !or the construction o! a residential development !or 1uinness in 5romley 6ent. The issue which arose was whether 1lenlion was entitled to comple te the wors be!ore the ompletion Date. 1lenlion had submitted a programme which showed early completion. It was held that it was sel! evident !rom lause 78 o! 2T 34 that 1lenlion were entitled to complete be!ore the date o! completion. This was so whether or not 1lenlion produced a programme with an earlier date and whether or not he was re#uired to produce a programme. Whilst 1lenlion was entitled to complete be!ore the contractual completion date it was held that the 1uiness was not re#uired to actively co9operate to enable the earlier date to be achieved but was only re#uired not to hinder completion. It is suggested that the situation will, however, be di'erent i! the programme is incorporated in the contract as a contract document or i! the entitlement under the contract is bound up with the programme. I! the &mployer does not wish to tae possession o! the wors early, the this needs to be dealt with by amendment o! the contract terms so that the contractor can price accordingly. I! acceleration is adopted as a reaction to events which have caused delay, rather than a planned strategy !or optimi/ation o! resources, then this will normally result in additional costs. The late or unplanned timing o! acceleration measures will normally mean that the resources deployed are di'erent to the resources planned, due to lac o! availability. The available additional e#uipment may operate at less than !ull capacity, being overcapacity !or the wor intended but with the additional hire costs involved. The need to use material more #uicly than planned may result in reduced number o! uses such as !ormwor, which will increase unit costs. The change in the se#uence o! woring may result in an increased numbe o! moves and%or distances !or plant, such as craneage in piling. Additional resources and out o! se#uence woring will place additional burden on the management to order materials and
consummables, and increase the supervision re#uired. Acceleration will a'ect the pattern o! wor, and has an e'ect on eciency, material delivery, e#uipment availability and there!ore the cost o! the wor. In most situations acceleration will mean carrying out the wor at a rate that is less than optimum in terms o! cost. Acceleration in many situations will disrupt the wors, a'ecting smooth trade inter!aces and increasing inter!erence between !ollow9on operations. In some cases it will mean unplanned access to woring areas, reduced productivity and increase in de!ects as well as stoppages. The additional payments !or overtime or weeend woring do not necessarily result in increased productivity. Indeed e$tended overtime and long hours will usually reduce eciency. Additional shi!ts are not always productive. &vening or bac shi!ts and night shi!ts are more liely to be less productive than dayshi!ts, and may create more de!ects and less sa!e wor ing The out o! hours woring may increase the cost o! delivery o! materials, together with the additional cost o! larger stocpile areas. :ew suppliers may need to be !ound !or the increase in consumption, which may involve increase in unit costs.
>G bli%ation to Accelerate The &mployers remedy !or the ontractors breach o! contract in !ailing to complete by the ompletion Date will be damages, whether general damages or li#uidated damages. *any standard !orms re#uire the ontractor not only to complete by the ompletion Date but also t proceed regularly and diligently. *any standard !orms provide a power !or acceleration to be ordered in the event o! the contractors de!ault in progressing with due diligence, without additional payment. *any standard !orms also provide a power !or ordering the ontractor to adopt acceleration measures i! it is considered that progress is not in accordance with the programme, I! due to the ontractors de!ault. ;uch powers do not normally e$tend to agreein to accelerate in the absence o! the contractors de!ault, which re#uires a separate agreement. I! such an agreement is entered into it is important to ensure that the terms relating to li#uidated damages still operate. In 5o'n 4arker +onstruction ,td v ,ondon 6ortman 7otel ,td .1//8 34,!39 5arer were building contractors carrying out re!urbishment o! wors to the ? @orm with #uantities. The contract provided !or completion o! -oors to 88 on 83 th 2uly 8B, -oors C to > by 7 th 2uly 8B and -oors 7 to B by 8B August 8B. lause 7B provided that li#uidated damages would be paid at 4?,??? per wee !or each section o! the contract which was not completed by the specied date. Delays occurred and it was apparent to all concerned that 2ohn 5arer was entitled to e$tensions o! time. A!ter negotiations it was agreed that the wor would be accelerated so that all the wor would be completed by 8Bth August 8B and 2ohn 5arer would receive additional payment. A!ter the acceleration agreement there were !urther delays and !urther instructions !rom the Architect. ne o! the issues which arose was the e'ect o! the acceleration agreement on the sectional completion provisions o! the contract in relation to li#uidated damages. 2ohn 5arer argued that the e'ect o! the acceleration agreement was to dispense with all the provisions o! the sectional agreement supplement, including the provisions !or li#uidated damages. It was argued that the substitution o! a single date was logically inconsistent with such provisions having continuing contractual !orce. This was not accepted. It was common
ground that at the time o! the acceleration agreement no9one raised the #uestion o! abandoning the li#uidated damages provisions. It was held that it was neither intended by the parties nor logically necessary that the li#uidated damages would no longer apply. It was held that the provisions o! the ;ectional completion supplement regarding li#uidated damages were capable o! continuing to have contractual !orce by merely substituting the new date o! 73th August 8B !or completion o! each ;ection. The parties intention did not go beyond that. In Ascon +ontractin% ,imited -v- Al)red :cAlpine +onstruction ;sle o) :an ,imited .1/// there had been delays due to a number o! causes and Ascon the concrete subcontractor claimed e$tension o! time. It was held that in considering the subcontractors entitlement to e$tension o! time, that it could not be re!used or reduced because o! the possibility o! !uture acceleration. That would impose an obligation on the subcontractor to incur e$pense in order to mitigate the conse#uences o! the contractors breaches o! contract. It would also deprive the subcontractors o! the opportunity, nowing how much o! the current delay had been allowed, o! assessing whether it was necessary to consider incurring additional e$pense in accelerative measures in order to reduce its potential liability in damages !or any disallowed balance, and i! so to decide !or itsel! how !ar it was in its own interests to incur that e$pense in the absence o! instructions to do so as a variation. Accordingly Ascon was awarded an e$tension o! time. It was not in dispute that Ascon was also entitled to damages to the e$tent o! any recoverable loss which could be established as caused by the period o! delay, and a sum was awarded. Ascon also claimed !or loss caused by acceleration measures it had undertaen. 0is 0onour 2udge 0ics E stated that acceleration had no precise technical meaning. Acceleration which was not re#uired to meet a contractors e$isting obligations was liely to be the result o! an instruction !rom the &mployers !or which he must pay. n the other hand pressure !rom the &mployer to mae good delay caused by the contractors own de!ault was unliely to be so construed. There was no instruction in this case. Ascon was under pressure !rom *cAlpine to accelerate the wors to recover the time lost, but was insisting that it was not going to pay !or acceleration. Ascons claim on that basis did not there!ore succeed. Ascon claimed that it allocated additional resources, wored longer hours, wored seven days per wee and purchased and supplied duplicate plant and e#uipment. Ascon claimed that these acceleration measures were taen in order to mitigate the delays caused. It was held that there could not be both an e$tension to the !ull e$tent o! the &mployers culpable delay, with damages on that basis, and also damages in the !orm o! e$penses incurred by the way o! mitigation, unless it was alleged and established that the attempt at mitigation, although reasonable, was wholly ine'ective. Ascon had not put its case in that way It contended that the wor was indeed completed sooner than it would have been in the absence o! the accelerative measures. The mitigation claim wholly !ailed at the outset and the acceleration claim also !ailed. In :ot'er&ell 4rid%e +onstruction ,imited v :ica> the issue o! acceleration was addressed in a long and complicated udgment by 2udge Toulmin *1 E.
*otherwell was a subcontractor to *ical !or the construction o! an autoclave !or the employer 5I under modied @IDI !orma o! contract. The autoclave was a large steel vessel used in the manu!acture o! high #uality power cables. There were a large number o! claims by *otherwell. ne o! two claims was !or acceleration costs !or the wor in relation to on site !abrication !or hours wored by *otherwellFs sta' in e$cess o! B3 hours !or the period !rom > th ctober 8> to *arch 8. *ical raised the de!ence that a term o! the contract provided that i! une$pected delays and diculties occurred, *otherwell was re#uired to provide additional personnel at no e$tra cost at the re#uest o! *ical in order to meet the re#uired completion date. It was held that the delays and diculties came within the denition o! "une$pected". There was no dispute that *ical constantly urged *otherwell to increase its resources to meet the re#uested completion date. Accordingly 2udge ;eymour held that *otherwell could not succeed in recovering damages !or this item. The second acceleration claim is e$amined in the article onstructive Acceleration
9G Acceleration A%reements ;ome standard @orms mae provision !or the parties to agree to accelerate the wors. &ven without such clauses, it is always possible !or the parties to agree to vary the contract to their mutual benet. I! the acceleration is necessary solely due to the contractors de!ault, it may be argued that the agreement to accelerate has no legal e'ect !or lac o! consideration, since th &mployer will simply obtain that which he is already contractually re#uired to receive. In ,ester Williams v !o(ey 4rot'ers ? Nic'olls .+ontractors ,td .1// >4,!8/ o'ey was the main contractor !or the re!urbishment o! a bloc o! -ats nown as Twynholm *ansions. Williams was a carpentry subcontractor providing labour !or the roo! and rst and second $ to the -ats with a total price o! 7?,???. The price was too low and a reasonable price should have been 74,G>4. This was !urther aggravated by Williams !ailing to supervise his men ade#uately, which reduced productivity. Williams there!ore were e$periencing nancial diculties. In April 8> o'ey agreed to pay Williams an additional 8?,4?? at the rate o! CGC !or each completed -at in order to have Williams continue with the wors and complete on time. The carpentry wor was on the critical pathe o! o'eys global operations so that !ailure by Williams to complete the wor in accordance with the ;ubcontract would lead to o'ey being liable !or li#uidated damages !or delay under the main contract. The e$pected payments were not made by o'ey so that in *ay 8> Williams ceased wor. o'ey engaged other contractors to complete the wor. It was argued that the agreement to mae additional payments was not legally binding on o'ey, since they had agreed to pay !or wor which Williams was al ready bound to carry out under the subcontract. There was no consideration. There was some diculty in nding consideration. It was held that in this case a benet was derived !rom the agreement by each party and that was sucient consideration !or the promise to pay additional sums to be binding.
Although not re!erred to as such, it is suggested that the agreement was in the !orm o! an acceleration agreement, the delay in this case having been caused by Williams own de!ault. There may be considerable diculties in evaluating the additional costs o! acceleration and di'erentiating those costs !rom the costs o! carrying out the wors at the normal pace. 1ood records are vital, but it may be appropriate to simply tae a broad approach. In Amec ? Al)red :cAlpine .5oint =enture v +'es'ire +ounty +ouncil .1///4,!303 heshire appointed the 2oint Henture as contractor !or construction o! the Wilmslow and 0and!orth 5ypass at *anchester under the I& C th &dition. 5y the end o! 8B there had been various delays !or which the 2oint Henture was not responsible. An acceleration agreement wa entered into !or which the oint Henture was paid various sums !or completing by 7C 8C. &arly in 8C it became clear that there was liely to be another overrun and the 2oint Henture was entitled to !urther e$tensions o! time. An in!ormal agreement was entered into inwhich the 2oint Henture agreed to use its best endeavours to complete by 7C th ctober 8C and heshire would pay !air and reasonable recompense !or the additional acceleration measures necessary. The date was achieved. :o specic method o! valuation had been agreed and disputes arose as to the method o! valuation, particularly because o! delays !or which heshire was not responsible and because o! the diculties o! separating out the cost o! wor which the 2oint Henture was already obliged to carry out under the original contract. A method o! valuation was decided as a preliminary issue which was endorsed by the ourt. @irst the 2oint Hentures actual costs () were ascertained !or the period o! acceleration. The amount that the wor carried out in the period o! acceleration should have cost was evaluated (J). The evaluation too into account all the events that had taen place be!ore commencement o! the acceleration period. The basic calculation o! the acceleration costs was there!ore 9J. @urther subtractions were made !or !actors and events !or which the 2oint Henture was liable (A). A !urther subtraction was the cost o! variations ordered in the acceleration period (5) since these were included in but not in J. The prima !acie entitlement was there!ore 9J9(AK5) plus a reasonable amount !or overheads and prot. This approach wa adopted because o! the diculties o! causation by analysis o! particular items o! wor and o! how time had been saved. ne issue be!ore the ourt was the adustment to be made !or payments received by the 2oint Henture !rom their insurers !or events during the acceleration period. The essential #uestion was whether insurance payments should be taen into account in deciding a !air and reasonable remuneration. It was held that to allow a deduction would give heshire the !ull benet o! the insurance cover whereas it was primarily !or the benet o! the 2oint Henture and only incidentally heshire. @urther there would be no double recovery because the principles o! indemnity which lie at the bais o! insurance law would re#uire the oint Henture to be accountable to the insurers !or the proceeds o! amounts received !rom heshire o! the relevant amounts.
8G +laims )or Acceleration I! the contract does not mae completion by a particular date or time an obligation under the contract then the contractor will not be able to mae a claim !or the cost o! acceleration
measures. The only obligation will be to complete within a reasonable time which will involve optimi/ation o! the resources !or greatest eciency and productivity. In most standard !orms the contractor has an obligation to complete by a particular date or within a specied period. &ven with such an obligation, the contractor will have some diculty in pursuing the additional costs o! acceleration where the contract entitles him to an e$tension o! time !or the delays which have occurred. In the case where the e$tension o! time provisions are not properly operated, the contractor may consider a constructive acceleration claim, but this is not without its diculties. I! the ontractor is ordered to accelerate in the mistaen belie! that the delay is due to the ontractors de!ault, whereas the delay was the responsibility o! the &mployer under the ontract, then the ontractor may be entitled to the acceleration costs.
G E@press erms o) "tandard orms The standard !orms generally give the contract administrator power to re#uire the contractor to revise his programme to re9se#uence the wors to reduce the e'ects o! delays which are the contractors de!ault. ;ome !orms also give the contract administrator power to order acceleration to achieve the completion date i! the delay is due to the contractors de!ault. nly !ew !orms allow the ontract Administrator to negotiate acceleration agreements. 1enerally the contractors obligations are to complete by the specied date and also to proceed regularl and diligently. 5reach o! this obligation normally allows the &mployer to terminate the contractors employment !ollowing notice and !ailure to remedy the de!ault.
;D;+ 1// lause 4.8 o! the ed and Jellow @orms provides that the &ngineer has no authority to amend the ontract. There is no power there!ore !or the &ngineer to negotiate an acceleration agreement !or the &mployer. As e$pected with a modern contract the ontractors obligation under @IDI @orms is tied into programme. lause >.8 o! the ed, Jellow and ;ilver @orms re#uires the contractor to proceed with the Wors with due e$pedition and without delay. lause >.B o! the ed and lause >.4 o! the Jellow and ;ilver @orms re#uires the ontractor to proceed in accordance with the programme, subect to his other obligations under the ontract. lause >.3 o! the ed, Jellow and ;ilver @orms gives the &ngineer (&mployer under the ;ilver @orm) power to instruct the ontractor to submit a revised programme with revised methods to e$pedite progress and complete within the Time !or ompletion. The power arises i! the actual progress is too slow to complete within the Time !or ompletion, or i! the progress has !allen or will !all behind the programme. There is no such power i! the cause is one o! the matters which entitles the contractor to an e$tension o! time. The ontractor is re#uired to adopt the revised methods which are stated to include increases in the woring hours and%or increase in resources and%or goods. The revised methods are at the contractors cost and ris and he is liable !or the &mployers additional costs incurred in addition to any delay damages. lause 8C.7(c)(i) o! the ed and Jellow @orms and lause 8C.7(c) o! the ;ilver @orm allows the &mployer to terminate the ontract i! the ontractor !ails to proceed with the Wors in
accordance with lause >, without reasonable e$cuse, and subect to notice.
;+E t' Edition lause 7(8)(c) provides that the &ngineer has no authority to ame nd the ontract or to relieve the ontractor o! any o! his obligations under the ontract, e$cept as e$pressly stated in the ontract. lause B3(4) re!ers to acceleration agreements. The &mployer or the &ngineer may re#uest the ontractor to complete in less than the time or e$tended time !or completion. I! the ontractor agrees, then special terms and conditions o! payment are to be agreed be!ore any acceleration measures are taen. lause 8B(B) re#uires the ontractor to submit a revised programme showing such modications to the original programme as may be necessary to ensure completion o! the Wors within the time !or completion, i! it appears to the &ngineer at any time that actual progress did not con!orm with the accepted programme. lause B3(8) gives the &ngineer power to noti!y the ontractor that in his opinion the progress o! the Wors is too slow to ensure substantial completion by the time !or completion. n doing so the ontractor is re#uired to tae such steps as are necessary, and to which the &ngineer consents, to e$pedite progress so as to substantially complete the Wors by the time !or completion. The power arises only i! the reason !or delay is not an event which entitles the ontractor to an e$tension o! time. The ontractor is not entitled to any additional payment !or taing the steps. Lnder lause B3(7) the may not unreasonably withhold permission to wor on ;ite at night or on ;undays i! re#uested. lause 3C(8) allows the &mployer to e$pel the ontractor !rom site, i! the &ngineer has certied in writing to the &mployer that despite previous warnings by the &ngineer in writing, in his opinion the ontractor is !ailing to proceed with the wors with due diligence.
E++ 2nd Edition lause 4?.8 re#uires the ontractor to do the wor so that ompletion is on or be!ore the ompletion date. lause 47.8 re#uires the contractor to issue revised programmes regularly and these are re#uired to show actual progress achieved and the e'ect on the timing o! the remaining wor. The programme is also re#uired to show how the ontractor plans to deal with any delays. lause 43.8 gives the =roect *anager power to instruct the ontractor to submit a #uotation !or an acceleration to achieve completion be!ore the ompletion date. The ontractor may submit a #uotation which is re#uired to comprise changes to the =rices and the ompletion date. Alternatively the ontractor may give reasons !or not doing so. lause 43.4 (lause 43.B ptions & and @) provides that when the =roect *anager accepts a #uotation !or acceleration, he changes the ompletion date (and =rices ptions A to D) and he accepts the revised programme. ne o! the secondary options is ption E which provides !or the ontractor to be paid a bonus !or early completion at a specied rate !rom the date o! completion or tae9over and the ompletion Date.
lause 3?.8() provides that withholding o! acceptance is a compensation event, but e$pressly states that withholding acceptance o! a #uotation !or acceleration i s not a ompensation &vent. lause C.7 provides that the &mployer may terminate i! the =roect *anager has notied that the ontractor is in de!ault by substantially !ailing to comply with his obligations and has not put right the de!ault within !our wees o! notication.
;+'emE !ed 4ook lause 88.8 provides that the =roect *anager has !ull authority to act on behal! o! the =urchaser in connection with the ontract. An e$ception is lause 4G.M the =roect *anager does not have power to issue a notice stating the =urchasers election to tae9over the =lant, which the =urchaser may do at any time. lause 84.8 re#uires the ontractor to complete the construction o! the =lant within the periods stated in ;chedule C (Times and ;tages o! ompletion). The ontractor is also re#uired to use his reasonable endeavours to per!orm his obligations in accordance with the Approved =rogramme. lause 84.B gives the =roect *anager power to re#uire the ontractor either to tae steps as may be practicable in order to achieve the Approved programme or to revise the Approved =rogramme. In addition, under lause 84.C i! the =roect *anager decides that the rate o! progress by the ontractor will preudice his ability to complete in accordance with luse 84.8, and this is due to a cause !or which the ontractor is responsible, the =roect *anager has power to give notice to that e'ect. The ontractor must then use his best endeavours to remedy the potential delay at his own cost. ;uch action does not a'ect the ontractors liability to pay damages !or delayed completion (lause 84.G). lause B8.7 gives the =roect *anager power to issue a notice that the ontractor is in de!ault by !ailing to proceed regularly and diligently with the Wors. I! the ontractor !ails to commence and diligently pursue the rectication o! such de!ault within 8B days a!ter receipt o! the notice or at any time therea!ter repeats the de!ault, the =urchaser may !orthwith determine the employment o! the ontractor under the ontract.
:B1 .!ev > 2000 lause 7.8 re#uires the &ngineer to carry out the duties specied in the ontract. I! he is re#uired to obtain prior specic approval o! the =urchaser be!ore e$ercising his duties, by reason o! the terms o! his appointment, then these are re#uired to be set out in the ;pecial onditions. lause 84.8 re#uires the ontractor to e$ecute the Wors and carry out the Tests on ompletion within the Time !or ompletion. lause 8B.8 re#uires the ontractor to submit a programme !or approval. Lnder lause 8B.C the &ngineer has the power to order the ontractor to revise the =rogramme i! he decides that progress does not match the =rogramme. The ontractor is then re#uired to revise the =rogramme to show the modications necessary to ensure completion o! the Wors within the Time !or ompletion. I! the modications are re#uired !or reasons !or which the ontractor is not responsible, the ost o! producing the revised =rogramme is adde
to the ontract =rice. Lnder lause 8B.3 the &ngineer has power to noti!y the ontractor i! the &ngineer decides that the rate o! progress o! the Wors is too slow to meet the Time !or ompletion and that this is not due to a circumstance !or which the ontractor is entitled to an e$tension o! time. The ontractor is then re#uired to tae such steps as may be necessary and as the &ngineer might approve to remedy or mitigate the liely delay, including revision o! the =rogramme. The ontractor is not entitled to additional payment !or taing such steps. lause B.8 allows the =urchaser to give the ontractor 78 days notice o! his intention to terminate the ontract enter the site and e$pel the ontractor, i! despite previous warnings in writing !rom the &ngineer the ontractor is !ailing to proceed with the Wors with due diligence.
5+ 1// The 2T 8> @orms do not provide clear e$press provisions !or the Architect to re#uire the ontractor to accelerate in order to achieve the ompletion Date. The ontractor is re#uired under lause B.8.8 to comply !orthwith will all instructions issued by the Architect, but only in respect o! matters which the Architect is e$pressly empowered by the onditions to issue instructions. Lnder lause 74.8.8 the ontractor is re#uired to regularly and diligently proceed with the Wors and complete on or be!ore the ompletion Date. lause 7C provides !or the ontractor to be granted e$tension o! time !or elevant &vents, but importantly lause 7C.4.B.8 re#uires the ontractor to use constantly his best endeavours to prevent delay in the progress o! the Wors, however caused, and to prevent the completion o! the Wors being delayed or !urther delayed beyond the ompletion Date. @urther, lause 7C.4.B.7 re#uires the ontractor to do all that may be reasonably re#uired to the satis!action o! the Architect to proceed with the Wors. lause 7G.7.8.7 allows the Architect to give notice o! de!ault i! be!ore the date o! =ractical ompletion the ontractor !ails to proceed regularly and diligently with the Wors. I! the ontractor continues the de!ault !or 8B days !rom receipt o! the notice, the &mployer may within 8? days a!ter the e$piry o! 8B days give notice determining the employment o! the ontractor. I! the &mployers notice is not issued, then i! the ontractor repeats the de!ault then upon or within a reasonable time a!ter such repetition, the &mployer may give notice determining the ontractors employment, taing e'ect on the date o! receipt o! the notice.
5+ 1// Wit' +ontractorCs Desi%n 2T 8> With ontractors Design is in similar terms to 2T 8> and similar considerations apply, e$cept that the &mployer administers the contract instead o! the Architect under 2T 8>.
5+ 1// 6rime +ost +ontract The 2T 8> =rime ost ontract is similar in structure to the 2T 8> @orm and similar considerations apply. There is no clear e$press provision !or the Architect to re#uire the ontractor to accelerate in order to achieve the ompletion Date. The ontractor is re#uired
under lause 4.4.7 to comply !orthwith will all instructions issued by the Architect, but subect to reasonable obection under lause 4.4.4 and subect to re#uest !or authority under lause 4.4.C. Lnder lause 7.8.8 the ontractor is re#uired to regularly and diligently proceed with the Wors and complete on or be!ore the ompletion Date. lause 7.C provides !or the ontractor to be granted e$tension o! time !or elevant &vents, but importantly lause 7.C.B re#uires the ontractor to use constantly his best endeavours to prevent delay in the progress o! the Wors, however caused. @urther, lause 7.C.B re#uires the ontractor to do all that may be reasonably re#uired to the satis!action o! the Architect to proceed with the Wors. lause G.7.8 allows the Architect to give notice o! de!ault i! be!ore the date o! =ractical ompletion the ontractor !ails to proceed regularly and diligently with the Wors. I! the ontractor continues the de!ault !or 8B days !rom receipt o! the notice, the &mployer may within 8? days a!ter the e$piry o! 8B days give notice determining the employment o! the ontractor. I! the &mployers notice is not issued, then i! the ontractor repeats the de!ault then upon or within a reasonable time a!ter such repetition, the &mployer may give notice determining the ontractors employment, taing e'ect on the date o! receipt o! the notice.
;+ 1// The I@ 8> is similar in structure to the 2T 8> @orm and similar considerations apply. There is no clear e$press provision !or the Architect to re#uire the ontractor to accelerate in order to achieve the ompletion Date. Lnder lause 7.8. the ontractor is re#uired to regularly and diligently proceed with the Wors and complete on or be!ore the ompletion Date. lause 7.4 provides !or the ontractor to be granted e$tension o! time !or specied events, but importantly the ontractor is re#uired to use constantly his best endeavours to prevent delay and to do all that may be reasonably re#uired to the satis!action o! the Architec to proceed with the Wors. lause G.7.8 allows the Architect to give notice o! de!ault i! be!ore the date o! =ractical ompletion the ontractor !ails to proceed regularly and diligently with the Wors. I! the ontractor continues the de!ault !or 8B days !rom receipt o! the notice, the &mployer may within 8? days a!ter the e$piry o! 8B days give notice determining the employment o! the ontractor. I! the &mployers notice is not issued, then i! the ontractor repeats the de!ault then upon or within a reasonable time a!ter such repetition, the &mployer may give notice determining the ontractors employment, taing e'ect on the date o! receipt o! the notice.
5+ 1// :inor Works The ontractor is re#uired to !orthwith carry out the instructions o! the Architect under lause 4.C. There is no clear e$press provision !or the Architect to re#uire the ontractor to accelerate in order to achieve the ompletion Date. lause 8.8 re#uires the ontractor to carry out and complete the Wors with due diligence. lause G.7.8 all ows the Architect to give notice o! de!ault i! the ontractor !ails to proceed diligently with the Wors. I! the ontractor continues the de!ault !or G days !rom receipt o! the notice, the &mployer may give !urther notice determining the employment o! the ontractor.
+E+A 4lue orm 1// lause G(7) gives the ontractor under the ;ubcontract the same powers as the &ngineer under the main contract, which under the I& G th edition will include the powers under lause B3 !or acceleration. lause G(8) re#uires the ;ubcontractor to comply with all instructions and decisions o! the &ngineer which are notied and conrmed in writing by the ontractor. lause 3(8) re#uires the ;ubcontractor to proceed with the ;ubcontract Wors with due diligence and without delay e$cept as e$pressly sanctioned or ordered by the ontractor or as may be wholly beyond the control o! the ;ubcontractor. The ;ubcontractor is re#uired to complete within the =eriod !or ompletion specied in the Third ;chedule. lause 8G(8)(b) allows the ontractor by written notice to determine the ;ubcontractors employment i! the ;ubcontractor !ails to proceed with due diligence a!ter being re#uired in writing to do so by the ontractor.
D:B1 lause 88.8 re#uires the subcontractor to complete the ;ubcontract Wors and reasonable in accordance with the progress o! the Wors. The ;ubcontractors entitlement to e$tension o! time is subect to the proviso in lause 88.> which re#uires the ;ubcontractor to use his best endeavours to prevent delay in the progress o! the ;ubcontract Wors however caused and to prevent any such delay resulting in the completion o! the ;ubcontract Wors being delayed beyond the period !or completion. The ;ubcontractor is re#uired to do all that may be reasonably re#uired to the satis!action o! the Architect and the ontractor to proceed with the ;ubcontract Wors. lause 7.7.8.7 allows the ontractor to give notice o! de!ault i! be!ore the date o! =ractical ompletion the ;ubcontractor !ails to proceed regularly and diligently with the ;ubcontract Wors. I! the ontractor continues the de!ault !or 8? days !rom receipt o! the notice, the ontractor may within 8? days a!ter the e$piry o! 8? days give notice determining the employment o! the ;ubcontractor. I! the ontractors notice is not issued, then i! the ;ubcontractor repeats the de!ault then upon or within a reasonable time a!ter such repetition, the ontractor may give notice determining the ontractors employment, taing e'ect on the date o! receipt o! the notice.
