Civil Engineering Reference
In-Depth Information
contracts do not give the architect power to instruct acceleration, but only set out a frame-
work for agreement.
A contractor will sometimes put more resources into a project than originally envisaged
andthenattempttorecoverthevalueonthebasisthattherewasnorealisticalternative,be-
cause the architect failed to make an extension of the contract period. A contractor in this
situation contends that, as a direct result of the architect's breach, it was obliged to devote
moreresourcestotheprojectsoastofinishbythedateforcompletion,otherwisetherewas
adangerthattheemployerwouldlevyliquidateddamages.Thisclaimtendstobeadvanced
whether or not completion on the due date is actually achieved.
Before this argument can be entertained, the key question is, 'What was the true cause
of the acceleration?' The contractor's difficulty is that if the architect wrongfully fails to
make an extension of time, either at all or of sufficient length, the contractor's redress un-
der the contract is adjudication or arbitration. If the contractor is entitled to an extension
of time, it should simply continue the work without trying to accelerate, knowing that it
will be able to recover its prolongation loss and/or expense, and any liquidated damages
deducted, by referring the dispute to adjudication or arbitration. If the contractor acceler-
ates, the true cause of the contractor's acceleration is not any breach by the architect, but
simply a decision by the contractor to put in more resources. Of course, a contractor in
this position may not be entirely confident that adjudication or arbitration will result in re-
imbursement of money lost. There are few certainties and the liquidated damages may be
high. Few would pretend that justice will inevitably be done in adjudication, arbitration or
legal proceedings. The contractor may consider that it is less expensive to accelerate than
to face liquidated damages with no guarantee that an extension of time will ultimately be
made, even without recovering acceleration costs. It may simply be a commercial decision
for the contractor. It is thought that a claim of this kind has little prospect of a successful
outcome.
A common situation is where a contractor accelerates without any agreement with the
employer or instruction from the architect. The result may be that some time is recovered
and an extension of time may be avoided. In this situation, a contractor may argue (and
sometimes use a computer model to demonstrate) that had it not accelerated, there would
have been a delay to completion. Nevertheless, in most such cases the contractor will not
find it easy to argue that it was doing other than using best endeavours to reduce delay, and
there is no clause in the JCT traditional contracts that could be used to reimburse a con-
tractor in this position.
Althoughaccelerationhasbeenconsideredinanothercase,theconclusionwassobizarre
titledtorecoverthecostofaccelerationifanextensionoftimewasjustifiedbutrefusedand
the liquidated damages were 'significant'. So far so good, albeit somewhat off the main-
