Acceleration is experienced on a construction project when a contractor either wants to finish early, or, more often, to recover lost time due to delays on the project. There are three types of acceleration that can occur: 1) voluntary, b) directed, and c) constructive. Voluntary acceleration is where a contractor makes schedule changes and/or expends additional resources at its own initiative. Directed, or ordered, acceleration occurs when the owner explicitly instructs the contractor to accelerate the work. Constructive acceleration occurs when the contractor is forced to attempt to achieve a completion date that is earlier than what should be required under the contract because the owner did not timely grant an extension for excusable delay. Constructive acceleration arises when the owner causes the contractor to accelerate not by an express direction but implicitly through the owner’s actions, typically failure to grant a time extension that the contractor would otherwise be entitled to.
While the concept may sound simple enough, there are five requirements in order to support a successful constructive acceleration claim. Constructive acceleration is commonly found to exist where, in spite of excusable delay, an owner requires a contractor (or a contractor requires a subcontractor) to meet the original delivery schedule or a schedule not properly adjusted for prior excusable delays. The five requirements to support a finding of constructive acceleration are:
- A period of excusable delay;
- Knowledge by the owner of the delay coupled with an opportunity to address the delay;
- Failure of the owner to grant or deny a time extension on account of the delay within a reasonable time;
- An order from the owner demanding a level of effort be expended to complete the project without such time extension; and
- Incurrence of additional costs as a result of the contractor’s acceleration.
Constructive acceleration can arise when excusable delay occurs that entitles the contractor to a time extension, and where the owner has knowledge of that potential time extension (contractors are cautioned to study their respective contract terms concerning notification of delay events). If the owner then fails to grant the time extension, or unreasonably delays granting of the time extension, and then also requires completion by a date earlier than that which would have been allowed considering the excusable delay, a contractor may be entitled to acceleration costs that it incurs upon performance of acceleration measures to complete on time. Note that it is not necessary for an owner to expressly direct the contractor to accelerate. Constructive acceleration occurs when the owner’s actions require that to complete the work in accordance with schedules not updated to include all time extensions for excusable delays.
While on the topic of acceleration, it is important to remember that both parties have a duty to mitigate the cost of delays as well as the costs of acceleration. Sometimes merely changing activity duration and logic on the contractor's schedule may help to reduce the impact of delay. Also remember that it is important to focus on activities that are on the project's critical path. Rather than accelerate a project by putting the whole job on overtime or multiple shifts, the contractor may find that it is only necessary to increase the resources for a few select tasks.
These and other acceleration topics, including recovery schedules, proof of delay and acceleration, and acceleration costs, will be discussed in more detail by attorney Chris Burke and construction consultant Michael Harris in an upcoming online webinar to be held Wednesday, November 11, 2014. Click here for more details or to register.