How to Claim Constructive Acceleration
Delays in the construction industry are very common. When a contractor experiences delays on a project, it may need to accelerate the work to get the project schedule back on track. Acceleration can be costly so understanding the basics of acceleration is essential for preserving rights to making a claim if necessary to recover costs related to acceleration.
Basics of Acceleration
What Is Acceleration in Construction?
Acceleration occurs when the construction work is intentionally performed at a quicker pace than originally planned. It can involve a combination of completing activities in a shorter duration, overlapping activities more than originally planned, or altering work sequences. Acceleration is typically performed when the forecasted completion date has extended beyond the contractual completion date and the schedule delay needs to be recovered. It may also apply if the owner determines that the project needs to be completed earlier than originally planned. Acceleration frequently leads to increased costs in labor, equipment, and support. The contractor should be able to recover these costs through a change order if the parties agree that the reasons are beyond the contractor’s control. If not, the contractor may be able to recover the additional costs through an acceleration claim. In this situation, the contractor needs a detailed analysis to determine if the schedule delay is due to events beyond its control.
A contractor’s ability to recover acceleration costs depends on why the project was accelerated. The types of acceleration include:
- Directed acceleration: Directed acceleration occurs when the contractor is instructed to accelerate work. Directed acceleration generally comes with compensation in exchange for the acceleration and is typically accomplished via a formal change order.
- Voluntary acceleration: Voluntary acceleration takes place when the contractor voluntarily accelerates its work. When voluntary, the contractor may not be entitled to recover additional costs for acceleration.
- Constructive acceleration: Constructive acceleration occurs when the owner denies the contractor’s request for a time extension resulting from an excusable delay. The contractor is then obligated to accelerate work to meet the original (or current) contract completion date.
At Spire Consulting Group, we have experience evaluating construction projects to identify the reasons for schedule delay, determine who is responsible for the delay, and quantify the costs associated with acceleration.
What Is a Constructive Acceleration Claim?
A constructive acceleration claim can occur when the contractor experiences an excusable delay but is instructed by the owner to complete the project by the original (or current) contract completion date.
Requirements for a Constructive Acceleration Claim
A constructive acceleration claim must meet the following criteria:
- The contractor incurs a delay resulting from causes which entitle the contractor to a time extension according to the contract.
- The contractor requests a time extension per the contract requirements for the delay.
- The owner does not grant a time extension.
- The owner requires the contractor to complete the work by the original (or current) contract completion date or liquidated damages will be enforced.
- The contractor intentionally accelerates by committing additional resources or working additional hours.
- The contractor incurs additional costs by carrying out the acceleration efforts.
Parties involved typically have a responsibility to mitigate the expense of delays and acceleration. Contractors may be able to decrease the impact of the delay by changing activity duration or sequence. Keep in mind that focusing on activities on the critical path is essential. Though sometimes contractors may want to put the job on multiple shifts or overtime, it may only be necessary to allocate more resources to a few tasks.
Compensation From Acceleration Claims
Costs that may be involved with acceleration include:
- Workforce supplementation
- Overtime and premium time payment
- Additional equipment
- Productivity loss
- Additional supervision
- Additional temporary facilities
- Material expediting costs
Contractors may seek compensation for additional costs through an acceleration claim. Acceleration efforts do not necessarily need to be successful for a claim to be made, but the contractor has to incur additional costs while legitimately attempting to accelerate.
How to Make Constructive Acceleration Claims
To make a constructive acceleration claim, the contractor must prove that the claim meets the above criteria, including that an excusable delay exists, there was a notification of the delay and a request for a time extension, a time extension was not provided, the work was accelerated, and additional costs were incurred as a result.
The cost associated with acceleration needs to be evaluated. The calculated cost should be reasonable, and the analyses, evaluations, assumptions, and methods should be clearly and transparently explained. The equipment and labor costs will also need to be substantiated, and expert testimony may be necessary to support the damages claimed with an independent analysis.
A construction acceleration claim needs to include the following components to ensure that the basis for the claim and requested compensation can be evaluated:
- Demonstration of delay in the project schedule including what activities were impacted and by how much
- Substantiation that the delay is excusable according to the contract and that the contractor is entitled to a time extension
- Documentation of how the contractor was constructively accelerated by the owner refusing to approve an extension
- Steps taken by the contractor to accelerate the work to recover the excusable schedule delays
- Quantification of the costs associated with the acceleration
A well-developed claim document is instrumental to a timely resolution that will maximize the recovery of damages due to acceleration.
To learn more about how to make a constructive acceleration claim, reach out to us at Spire Consulting Group.
Contact Spire Consulting Group
Spire Consulting Group exists to ensure your vision becomes a reality. As construction consulting experts, we’re committed to your project’s success. We solve and simplify complex problems to help you build with peace of mind, and we customize services to meet your particular needs in the oversight, management, and forensic investigation of your construction projects. We can serve you by evaluating and quantifying your construction acceleration costs.
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The content included in this article is for informational purposes only and does not reflect the opinions or recommendations expressed by any individual unless otherwise stated.