DEFINING CONSTRUCTIVE ACCELERATION

When it comes to the definition of “constructive acceleration,” the case of Fraser Const. Co. v. U.S., 384 F.3d 1354 (Fed.Cir. 2004) is a cited case and contains an instructive definition, quoted below, for proving a constructive acceleration claim.

In a nutshell, a constructive acceleration claim is when the contractor incurs added costs for trying to complete the contract on time when it should be provided extensions of time to perform based on excusable delay (i.e., delay not caused by the contractor).  These added costs could be bringing in additional supervision to manage the work, adding manpower to perform the work, working overtime, working weekends, adding more shift work, stacking trades, etc.  However, just because a contractor claims they have been constructively accelerated does not make it so.  The contractor has to actually ask for an extension of time based on an excusable delay and the owner either denied the extension or unreasonably sat on the request for an extension of time; thus, the contractor incurred significant costs to accelerate in order to finish the project on time because it was deprived of a requested time extension for excusable delay.

If you are a contractor and need to support a constructive acceleration claim, please take note of this definition by the Fraser Construction court:

A claim of acceleration is a claim for the increased costs that result when the government requires the contractor to complete its performance in less time than was permitted under the contract. The claim arises under the changes clause of a contract; the basis for the claim is that the government has modified the contract by shortening the time for performance, either expressly (in the case of actual acceleration) or implicitly through its conduct (in the case of constructive acceleration), and that under the changes clause the   government is required to compensate the contractor for the additional costs incurred in effecting the change. 

A claim of constructive acceleration ordinarily arises when the government requires the contractor to adhere to the original performance deadline set forth in the contract even though the contract provides the contractor with periods of excusable delay that entitle the contractor to a longer performance period. Although different formulations have been used in setting forth the elements of constructive acceleration, the requirements are generally described to include the following elements, each of which must be proved by the contractor: (1) that the contractor encountered a delay that is excusable under the contract; (2) that the contractor made a timely and sufficient request for an extension of the contract schedule; (3) that the government denied the contractor’s request for an extension or failed to act on it within a reasonable time; (4) that the government insisted on completion of the contract within a period shorter than the period to which the contractor would be entitled by taking into account the period of excusable delay, after which the contractor notified the government that it regarded the alleged order to accelerate as a constructive change in the contract; and (5) that the contractor was required to expend extra resources to compensate for the lost time and remain on schedule.

Fraser Const. Co., supra, at136.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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