Acceleration in construction is generally understood to mean taking measures to speed up the works in order to complete them earlier than the contracted completion date. The Society of Construction Law Delay and Disruption Protocol (SCL Protocol) describes acceleration as ‘The application of additional resources or alternative construction sequences or methodologies seeking to achieve the planned scope of work in a shorter time than planned or execution of additional scope of work within the original planned duration.’
Acceleration traditionally falls into two categories:
This blog focuses on instructed acceleration, where I give guidance on the correct steps to take when this event occurs on your construction project.
So you have been asked to accelerate the Works, what do you do next? As I would advise in most situations, before you act, read your contract. Does the Employer's Representative (ER) have the power to instruct under the terms of the contract? If not, then you are under no obligation to act on the ER’s instruction unless you otherwise agree to.
For example, the scope of the ER’s power to instruct under the RIAI Construction Contract, August 2017 Ed. comes from Cl 2. Under Clause 2, the Architect may, “in the Architect's absolute discretion and from time to time issue further drawings, details and/or written or oral instructions (hereinafter referred to as ‘Architect’s Instructions’) in regard to” a variety of matters, including:
Although acceleration is not explicitly mentioned, the broad nature of “Variations” arguably allows an Architect to instruct changes that could encompass acceleration.
To avoid confusion at a later stage as to what was agreed regarding the scope, extent, fees and payment for acceleration, it is strongly advised that a standalone acceleration agreement is formalised in writing, before you accelerate the Works.
If the ER instructs you to accelerate the Works, make sure the scope of acceleration is clearly known or defined. What exactly does the ER want you to accelerate, and to what extent? Does the ER want you to accelerate the entire Works or just a section of the Works? If your contract allows for sectional or phased completions, how does the instruction to accelerate affect the various sectional completion dates? In relation to the extent of the instruction to accelerate, make sure this is clearly defined. Does the ER want to finish the Works by a specific date or reduce the programme duration? As many construction projects can have multiple programme revisions, make sure both parties are clear on which programme revision is being accelerated.
Accelerating the Works can be an expensive task for the Contractor. Additional expenditure can commonly arise on account of the following:
Inevitably, the Contractor should be paid for the additional costs it incurs in accelerating the works on a lump sum or reimbursable basis. It is understandable why the Contractor might prefer a reimbursable basis because some of its costs are not easy to predict at that stage, and therefore, a lump sum could become inaccurate. However, in my experience, as it can be challenging to capture all of the acceleration costs retrospectively, I would prefer that an acceleration fee be agreed on a lump sum basis in advance of the acceleration event taking place. This way, the Contractor knows how much it will be paid to allow it to plan the acceleration event accordingly.
To avoid confusion at a later stage as to what was agreed regarding the scope, extent, fees and payment for acceleration, it is strongly advised that a standalone acceleration agreement is formalised in writing, before you accelerate the Works. This acceleration agreement should include matters such as:
