In a recent dispute out of the Federal Circuit, Amatea/Grimberg JV v. Secretary of the Navy, 2025 WL 1752375 (Fed.Cir. 2025), a contractor submitted a constructive acceleration claim to the government after its request for time extension was denied. The contractor claimed it directed its subcontractors to work overtime and add resources to complete the project on time in light of the exposure to liquidated damages. The government denied this claim, as did the Armed Services Board of Contract Appeals, prompting the contractor to appeal. The contractor’s appeal was denied.
Constructive acceleration often occurs when the government demands compliance with an original contract deadline, despite excusable delay by the contractor.” The five elements of constructive acceleration are: (1) the contractor encountered an excusable delay; (2) the contractor made a timely request for an extension of time to complete the contract; (3) the government denied the request or did not act on it in a reasonable period of time; (4) the government insisted on completion of the contract in a lesser period of time than the excusable delay would have permitted; and (5) the contractor incurred added expense to compensate for the lost time and remain on schedule. An excusable delay results from “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.” The unforeseeable cause must also affect the “critical path of performance,” delaying contract completion.
Amatea/Grimberg JV, supra, *2.
Here, the contractor’s constructive acceleration claim was denied because the contractor could NOT prove the first element – that there was an excusable delay. Further, the contractor did not provide an expert’s critical path analysis to substantiate there was an excusable delay that delayed the critical path of the project to completion.
Look, if you are dealing with a delay claim, you are doing yourself a major disservice if you don’t have an expert to substantiate the excusable delay and critical path impact of that delay. Further, there is a strong chance the government / owner will have an expert. Thus, not having an expert to provide a rebuttal opinion (as was the situation in this case) puts you in a losing position when the essence of your claim requires expert opinions regarding excusable delay and critical path impact.
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