This is the third in a three-part series. The previous posts covered:

  1. Brainstorming to be carried out for drafting an acceleration clause
  2. Methodologies of achieving acceleration.
  3. Proving acceleration claim
  4. Standard acceleration clauses under FIDIC 1999, 2017 and NEC standard forms of contract
  5. Payment methodologies for acceleration.

This shall discuss how we drafted a simple acceleration clause suitable for the requirements and constraints of the project; which were:

  • Completion period – 3 years
  • Maximum Acceleration anticipated – 2 months
  • Acceleration likely to be ordered only during the final stages of the project and under extreme circumstances, mainly due to political considerations. Hence no question of refusal by the Contractor except in case of non-feasibility.
  • Acceleration may be ordered to reschedule the Original Completion Date (if there is no delay) or the Extended Completion Date, in case EOT has been granted.
  • No time to have mutually agreed costs before instructing acceleration.
  • The Contractor may not have the wherewithal/competency to prove all its entitlements. The Contractor need not worry about receiving his payment.
  • Partial acceleration is not acceptable since it would not be of any use to the Employer.

To cater to these project constraints, we drafted a simple acceleration clause that read as follows:

“The Employer may instruct the Contractor to accelerate the work to achieve completion of the Works by the scheduled Time for Completion as specified in the Particulars Details of Contract (PDC). The Contractor shall be bound to accept this instruction unless he proves that it is technically or practically not feasible; and in this event, as a result of such accelerated work undertaken, if the Contractor incurs any additional expenses, the Contractor shall be paid an amount equal to sum in percentage of the balance of the Contract Price, as mentioned in the Particular Details of Contract (PDC), as on date of such instruction for each week of acceleration or pro-rata for part thereof, before the scheduled Time for Completion, subject to a maximum percentage of balance Contract Price as mentioned in the Particular Details of Contract (PDC). In case the Contractor is not able to achieve the revised completion date as a result of instructions of acceleration, he will not be given any additional costs; however, delay damages will be levied only from the date of the pre-revised completion date.”

Points to Note

  • Any clause formulated must take into consideration specific project constraints.
  • Keep the wording simple. Complex, confusing wording does not “protect” the Employer.
  • Make the burden of proof (for the purposes of the claim) simple.

This concludes this three-part series. The previous posts can be read here and here. For a PDF of the entire series, please email hello@instituteccp.com with the subject line: Drafting Acceleration Clauses.

This post was contributed by Amit Kathpalia FICCP, MRICS. This was originally a LinkedIn post. Amit is the author of Practical Construction Contract Issues Which Are Not Commonly Understood. 

Enjoying the ICCP’s articles? Why not sign up for our mailing list and receive new articles straight into your mailbox? Or, want access to a library of members-only content on contracts and claims? Check out our Membership page and join the ICCP community today.