Article Date: 12/06/2013

Attorneys Discuss Legalities Encompassing ‘The Construction Acceleration Hot Potato’

By Steve Rizer


When, if ever, does a contractor have a right to refuse to proceed with an accelerated-recovery directive? Does there ever reach a point of sufficient magnitude or contentiousness whereby a contractor can say, “I have to simply invoke a right to refuse to follow your directive?” Chris Burke, a partner in Watt, Tieder, Hoffar & Fitzgerald LLP, addressed this inquiry during the question-and-answer period of “Recovery Schedules -- The Construction Acceleration Hot Potato: Practical and Legal Considerations,” a 90-minute webinar that WPL Publishing held late last month. 


“That is a very good question, and it is a very difficult question to answer in a vacuum,” Burke told the webinar audience in response to the inquiry. He reported that his firm has been “very hesitant” to advise contractors to take such a stand, especially when a duty-to-proceed clause is included in the contract.


Burke noted that in Federal Acquisition Regulation contract clauses, the U.S. government is able to issue changes within the scope of the contract.


Burke then discussed a hypothetical situation in which a contractor concludes that what it is being requested to do is “wildly different than what it has been essentially contracted to do. You might kind of reach the point of no return and say, ‘Enough is enough. I am being asked to do something that is well outside the scope of what I was originally required to do,’” and, therefore, the contractor indicates that it is unable to fulfill the request. “That might allow for some further negotiations between the contractor and the owner, but that is a very, very tough step to take for contractors.”


Burke and fellow presenter Michael Harris, vice president of Warner Construction Consultants Inc., additionally discussed baseline-schedule considerations, schedule updates, notice and changes, requests for recovery schedules, recovery-schedule development, costs, and other topics related to recovery schedules.


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