There’s a moment on most delayed infrastructure projects where the Principal’s team looks at the program, looks at the contractor’s current rate of progress, and decides to send a letter telling the contractor to pull their socks up.
On the surface this seems reasonable. The contractor is behind. You want them to speed up. You have a right under the contract to direct them to maintain Scheduled Progress. So you send the letter.
What you may not have appreciated is that you’ve just handed the contractor a potential Cl.52 Acceleration Notice argument — at the Principal’s cost.
What Cl.22.8 Actually Does
Cl.22.8 of GC21 gives the Principal the right to direct the contractor to take “reasonable steps” to maintain Scheduled Progress. Scheduled Progress is the progress required by the current Contract Program to achieve Practical Completion by the Contractual Completion Date.
The clause sounds like a powerful tool. In practice, it’s a double-edged one.
The problem is Cl.52, which provides a separate mechanism: Acceleration. Where the Principal directs the contractor to achieve Practical Completion earlier than the Contractual Completion Date — or to make up time at a rate exceeding what the program requires — that direction may constitute an Acceleration Notice triggering the contractor’s entitlement to recover acceleration costs.
The contractor’s standard move when they receive a Cl.22.8 direction: argue that what the Principal has characterised as a “reasonable steps” direction is, in substance, a Cl.52 Acceleration Notice. Different label, same piece of paper — but under Cl.52, the cost is the Principal’s.
How the Argument Gets Constructed
The Cl.52 recharacterisation argument typically runs like this:
“Scheduled Progress requires us to achieve completion by [CCD]. We have submitted a revised program extending the CCD by [X months] to reflect delays caused by [insert Principal-risk events]. Until those EOT claims are assessed and granted, the program we are required to maintain under Cl.22.8 is uncertain. If you are directing us to maintain progress against the original CCD, you are directing us to accelerate — which is a Cl.52 event at your cost.”
This argument has two components: the baseline dispute and the sequencing leverage.
The baseline dispute: Cl.22.8 directions are only meaningful against a complying Contract Program. If the contractor’s current program doesn’t comply with Cl.22.8 requirements — if it’s been rejected, hasn’t been approved, or has never been assessed — then the basis for the direction is contested. On the project, the Contractor had no complying Contract Program at the time the the Principal’s correspondence correspondence was issued. That’s actually a point in the Principal’s favour — but it complicates the direction.
The sequencing leverage: If the contractor has pending EOT claims that haven’t been assessed, they can argue that the “true” CCD is already extended, and any direction to maintain progress against the original CCD is directional acceleration. The longer unassessed EOT claims sit in the queue, the stronger this argument becomes.
The Problem With Initiating the Discussion
The more dangerous variant of the Cl.22.8 trap is where the Principal doesn’t just issue a formal direction — they initiate an informal discussion about “acceleration options” before clarifying the contractual basis.
On the project, the Principal needed to check its own correspondence trail immediately when the Contractor’s response to the Principal’s correspondence pointed out that the Principal had initiated the acceleration discussion. If meeting minutes, emails, or earlier correspondence show the Principal raising the possibility of acceleration — even informally, even with caveats — the contractor will use that to argue that the direction to catch up and the subsequent “acceleration” are part of the same conversation.
The specific exposure: if the Principal’s own records showed that the Principal raised acceleration options before issuing the Cl.22.8 direction, the Contractor could argue that the Cl.22.8 letter was the formalisation of an acceleration instruction that the Principal had already initiated. That recharacterises the entire sequence as a Cl.52 event.
This is why checking your own correspondence trail is the first thing to do when you receive a substantive contractor response to a program direction.
The Defence: What Protects the Principal
Three things protect the Principal when issuing Cl.22.8 directions:
1. Frame it as “reasonable steps” — not “faster”
A Cl.22.8 direction should direct the contractor to take reasonable steps to maintain the Scheduled Progress required by the current Contract Program. It should not direct the contractor to achieve a specific rate of progress beyond what the program requires, and it should not reference any date earlier than the current Contractual Completion Date.
Language like “we require you to mobilise additional resources to recover the lost time” can be read as directing acceleration. Language like “we direct you to take reasonable steps in accordance with Cl.22.8 to maintain the Scheduled Progress shown in your Contract Program” is more defensible.
2. Advance your EOT assessment
The contractor’s “adjusted baseline” shield depends on the Principal not having assessed the pending EOT claims. Every unassessed EOT is leverage for the contractor to argue that the real CCD is already extended and that a direction to maintain progress is de facto acceleration.
If you’re issuing Cl.22.8 directions on a project with unassessed EOT claims, you’re operating with one hand tied behind your back. Get the assessments done — either grant the EOT where entitlement exists, or formally reject the claim with reasons. An assessed position, even a disputed one, is better than an unassessed one.
3. Use the Cl.22.8 direction against the “no complying program” argument
Where the contractor has no complying Contract Program — because their submissions haven’t met the Cl.22.2 requirements — you can turn this against them. They can’t argue “we’re maintaining Scheduled Progress as per our revised program” if their revised program hasn’t been submitted in compliance with the contract. Their own failure to provide a complying program undermines their ability to use Scheduled Progress as a shield against your direction.
This is a two-sided point: you can’t issue a fully effective Cl.22.8 direction against a non-existent program either. But where the contractor’s program failure is itself the cause of the confusion, you can use it in the correspondence.
The Broader Principle: Separate the Conversations
The cleanest way to avoid the Cl.22.8 trap is to keep two conversations completely separate:
Conversation 1 — Cl.22.8 direction: “Your current rate of progress is insufficient to achieve Practical Completion by the Contractual Completion Date. We direct you under Cl.22.8 to take reasonable steps to maintain Scheduled Progress.”
Conversation 2 — Acceleration (if genuinely contemplated): “The Principal is exploring whether to instruct acceleration under Cl.52. This is not a direction to accelerate. If we decide to issue a Cl.52 Acceleration Notice, we will do so in a separate written instruction with the required information under Cl.52.”
If both conversations happen in the same document, the contractor’s lawyers will stitch them together into a single acceleration instruction. Keep them in separate correspondence, on separate dates, for separate reasons.
And if the informal conversation about acceleration has already happened — in a meeting, in an email, in a progress report — check the record before you issue the Cl.22.8 direction. Know what you’re walking into.
The Practical Outcome
On the project, the Principal’s Cl.22.8 position was weakened the moment it became apparent that the Principal may have initiated the acceleration discussion. The recommended response was to:
- Pull every piece of correspondence and meeting minute related to the Principal’s correspondence immediately
- Assess the pending EOT claims urgently to eliminate the Contractor’s “adjusted baseline” argument
- Redraft any future program direction to be explicitly bounded by Cl.22.8 language — “reasonable steps,” current Contract Program, no reference to any earlier completion date
The situation was recoverable. But it required moving quickly and with full awareness of what the contractor would do with the correspondence history.
The Rule of Thumb
Before issuing any direction that touches a contractor’s program, rate of progress, or completion date, ask yourself one question: does this letter, if attached to a Cl.52 Acceleration Notice, support or undermine my defence?
If you can’t answer “undermine,” redraft it until you can.
If You’re the Contractor: Turning a Cl.22.8 Direction Into a Recoverable Cost
From the contractor’s side, receiving a Cl.22.8 direction when you have pending EOTs and a disputed program is both a threat and an opportunity. Here’s how to protect your position and, where justified, convert the direction into a recoverable cost.
Submit a complying program first. This sounds counterintuitive when you’re already behind, but it’s essential. A complying Contract Program under Cl.22.2 does two things for you: it establishes your claimed CCD as the contractual baseline and it gives you the Scheduled Progress reference point that makes a Cl.22.8 direction meaningful. Without a complying program, the Principal can argue your revised CCD isn’t contractually established. With one, you force them to either assess your EOT claims or concede that the current CCD reflects your entitlement.
Get your EOT claims in on time, every time. The Principal’s “adjusted baseline” defence falls apart if your EOT claims are out of time under Cl.50.9. Conversely, timely EOT claims that are sitting unassessed are your most powerful lever when a Cl.22.8 direction arrives. Each unassessed claim is an argument that the Principal doesn’t know what your real CCD is — and that their direction to maintain progress against the original date is effectively a direction to accelerate.
Document every informal acceleration conversation. If the Principal’s team raised acceleration in a meeting, in an email, in a phone call — document it immediately. Meeting minutes, a follow-up email confirming what was discussed, your own file note with date and attendees. The Principal’s formal Cl.22.8 letter doesn’t exist in isolation; it sits in a correspondence trail. If that trail shows the Principal initiated a discussion about catching up time before the formal direction, you have the foundation of a Cl.52 argument.
Respond to Cl.22.8 directions formally and specifically. Don’t just acknowledge the direction. Put your position on record: “We note your Cl.22.8 direction. Our position is that Scheduled Progress cannot be assessed against the original CCD while EOT claims [EOT-01 through EOT-04] remain unassessed. We are taking reasonable steps in accordance with our current Contract Program. To the extent your direction requires progress beyond what our program reflects, we reserve all rights under Cl.52.” That letter preserves your Cl.52 argument without escalating unnecessarily.
Know the Cl.52 requirements. A Cl.52 Acceleration Notice from the Principal must be in writing and must specify the earlier Practical Completion date required and how the acceleration is to be achieved. If the Principal has issued a Cl.22.8 direction without meeting those requirements, it’s not a formal acceleration instruction — but the conversation around it may still be relevant to quantifying your costs if you’ve mobilised additional resources. Document everything you spend in response to the direction, in case the Cl.52 characterisation succeeds later.
Cl.22.8 directions are often the moment a delayed project tips into a formal dispute. The contractors who come out of that process with recoverable costs are the ones who had their programs submitted, their EOTs in on time, and every informal conversation documented before the formal direction arrived.
This post is based on real contract administration work on an active NSW infrastructure project. Contract clauses referenced are from GC21 Edition 2.