By Bruce Jervis
The elements of “constructive acceleration” of the work are easy to state. The contractor is entitled to an extension of the performance period. The project owner refuses to grant an extension and insists on compliance with the completion deadline. The contractor incurs increased costs adding resources to the job in an attempt to meet that deadline.
Contractor recovery of acceleration costs begins with entitlement to an extension of time. The terms of the contract will be determinative. This was reflected in a recent New York case.
The contract said the contractor assumed the risk of any regulatory or governmental delay. Regulatory delay occurred. The project owner refused to grant an extension of time and insisted the contractor comply with the CPM schedule. The contractor increased its efforts. This was not a compensable acceleration of the work because the contractor had not been entitled to an extension of time. There can be no recovery of “costs incurred in an attempt to bring the job in on time.”
Are there situations where a contractor should recover the increased performance costs it incurs when attempting to meet the needs of the project owner? Or, if the contractual completion deadline is legally enforceable, should all increased costs be the contractor’s responsibility? Should the rule be ironclad? I welcome your comments.