Acceleration: What does the law say?

It is not to be understated that the contract between parties (Employer and Contractor) is what both of them have agreed to govern their relationship. However, exigencies do exist and they always have significant impact on projects.

In the case of Ascon Contracting Limited v Alfred McAlpine Construction[1], His Lordship Judge Hicks in the UK High Court said the word “‘acceleration’ tends to be bandied about as if it had a precise technical meaning, but I have found nothing to persuade me that this is the case.”

Notwithstanding, generally, “acceleration” refers to action taken to speed up the progress of works so they will be completed earlier than planned or so that more work can be completed without extending the original completion date. Acceleration is one incident that tends to bring so much discomfort to Contractors especially concerning methods adopted to complete the works. It clearly disrupts their program of activities where a contractor is compelled to resort to different working methods or revised sequencing.

For example, a Contractor considering to transport a work item by maritime freight may now have to consider air freight which comes at a higher cost in order to meet the new timelines.

Also consider that, more workers may be needed for a work activity which will require extra supervision and especially when you have to work longer shifts.

In this regard, the Employer may argue that the duration is now being shortened and that the Contractor will have to spend less on preliminaries such as supervision and utilities.

So basically, the question one has to ask is, what does the contract say when it comes to acceleration? We will take a look at some provisions in standard forms of contract.

NEC4

Core Clause 36 provides that:

      I.        the contractor or the project manager may propose to accelerate completion. If both parties agree to consider acceleration, then the project manager instructs the contractor to provide an acceleration quotation; the project manager’s instruction identifies the revised date(s) that the accelerated measures must achieve

    II.        the contractor’s acceleration quotation must include a revised programme and set out the changes to its prices; and

   III.        if the quotation is accepted, then the project manager changes the key dates and prices, and accepts the revised programme.

Here an acceleration is seen as a proposal subject to agreement by the parties. It is only after acceptance of quotation that the contract dates, price and timelines are changed. It can be seen from the reading of the text that an upward revision of figures is implied. When acceleration is agreed, both parties will have to comply with the new terms set forth.

FIDIC Red Book

Clause 8.7 provides that, where any acceleration is required due to an event that is the responsibility of the employer, then the variation provisions shall apply.

Conclusion

In executing contracts under common law jurisdictions such as Ghana, it is important to re-emphasize that parties must adhere strictly to the terms of their contracts. No one can give what he does not have” (Nemo dat quod non habet).

If the Employer desires the Contractor to accelerate works to complete earlier than the completion date, the contract must first contemplate that possibility. Contractors are advised to check their contract if there is any express entitlement to the additional cost of putting in place acceleration measures. In the absence of such, parties must enter into a separate acceleration agreement, and should be in writing following the contractual mechanism if any, and annexed to the main contract. In implementing acceleration measures, it should, at the very least, notify the employer and maintain good records in order to prove its entitlement

Authors

Charles Amissah-Koomson

Prince Benson Mankotam Esq.