How to Claim Constructive Acceleration

Delays in the construction industry are very common. When a contractor experiences delays on a project, they may need to accelerate the work to get the project schedule back on track.

Some causes of a delay, like unforeseen weather events or late approvals, are beyond a contractor’s control and may be considered excusable. If a project owner does not approve a contractor’s request for more time due to an excusable delay, a constructive acceleration claim could be on the horizon.

Accelerating a construction project can quickly get costly for contractors. Understanding the basics of constructive acceleration is essential for preserving rights to making a claim, if necessary, to recover costs related to acceleration.

What Is Acceleration in Construction?

Acceleration occurs when the construction work is intentionally performed faster than planned. It can involve completing activities in a shorter duration, overlapping activities more than originally planned, or altering work sequences.

A contractor might decide or be directed to accelerate construction work when the forecasted completion date surpasses the contractual completion date. A contractor might also choose to expedite construction work if the owner requests the project to be completed earlier than the agreed-upon date.

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.

Acceleration Types

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 expedites construction work. When voluntary, the contractor might 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.

What Is a Constructive Acceleration Claim?

A contractor may claim constructive acceleration when they experience an excusable delay but are instructed by the owner to complete the project by the original or current contract completion date.

When a project owner refuses to grant a time extension despite an excusable delay, the contractor is generally required to speed up work to avoid a contract breach and liquidated damages. They might hire more labor, increase overtime, or pay for other resources to meet an accelerated schedule. A constructive acceleration claim aims to recover compensation for increased costs related to project acceleration.

In this situation, the contractor needs a detailed analysis to determine if the schedule delay is due to events beyond its control. 

Requirements for a Constructive Acceleration Claim

A constructive acceleration claim must meet the following criteria: 

• The contractor experiences an excusable delay and is entitled to a time extension according to the contract. 
• The contractor requests a time extension per the contract requirements for the delay.
• The owner fails to 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 accelerates construction work to meet the contract’s completion deadline by utilizing additional resources or working overtime, incurring additional costs.

The parties involved are typically responsible for mitigating 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 Method is essential. Although contractors may sometimes want to put the job on multiple shifts or overtime, it may only be necessary to allocate more resources to a few tasks. 

How Does a Contractor Make a Constructive Acceleration Claim? 

To make a constructive acceleration claim, the contractor must have documentation to prove the above criteria. A well-developed claim is instrumental to a timely resolution that will maximize the recovery of damages due to acceleration. This includes the following information:

• The original or amended contract to demonstrate the agreed-upon completion date and time extension clauses, if applicable.
• The contractor’s formal request for a time extension due to excusable delays.
• Correspondence showing that the project owner failed to grant a time extension, refused to approve an extension, or explicitly ordered the work to be completed by the current contract’s completion date.
• Documentation demonstrating a delay in the project schedule, including what activities were impacted and by how much.
• Documentation, such as change orders or photographic evidence of site conditions, substantiating that the delay is excusable according to the contract and that the contractor is entitled to a time extension.
• Evidence of acceleration efforts, such as payroll records demonstrating increased labor or overtime.
• Proof that the contractor incurred additional costs due to project acceleration.

Quantifying the Costs of Construction Acceleration

The costs associated with acceleration need to be properly assessed and quantified to justify the claim and facilitate negotiation. The calculated costs should be reasonable, and the analyses, evaluations, assumptions, and methods should be clearly and transparently explained.

For example, additional equipment and labor costs will need to be substantiated. An expert testimony may be necessary to support the damages claimed with an independent analysis.

Quantifying costs can be challenging because some expenses are hard to measure. For instance, it can be difficult to quantify the cost of inefficiencies resulting from a larger crew and site congestion. Contractors can seek support from claims experts to simplify cost analysis and quantification.

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 the above 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. 

What if a Constructive Acceleration Claim Does Not Get Resolved?

Generally, the goal of a constructive acceleration claim is to negotiate, reach an agreement between both parties, and resolve the claim. Negotiation can allow both parties to problem-solve and collaborate, incorporating the best interests of both sides and preserving the relationship.

If the contractor and project owner are unable to successfully negotiate compensation and resolve the claim, they may bring in a third party to proceed with a different form of dispute resolution.

Common types of dispute resolution include:

Mediation

A third-party mediator can facilitate understanding between the two parties and help them reach an agreement. Ideally, the mediator should be an expert in the construction industry so they can guide the discussion effectively.

Mediation is typically a less costly and time-consuming process than arbitration or litigation. With its collaborative approach, mediation can help preserve the relationship between the contractor and the project owner.

Arbitration

If mediation is unsuccessful, the dispute can be reviewed by third-party arbitrators. Arbitrators who work with constructive acceleration claims are often professionals with construction industry expertise.

The arbitrator or arbitration panel will decide on a legally binding outcome.

Litigation

The contractor may file a lawsuit with the appropriate court if other dispute resolution methods are unsuccessful. Litigation can be the costliest, most time-consuming option. It also often ends business relationships between adversarial parties.

Nevertheless, litigation can resolve the dispute and lead to a clear, legally binding decision.

Why Trust Spire Consulting Group

Spire Consulting Group is a multidisciplinary construction consulting firm with over a decade of experience and firsthand knowledge of the construction industry. Our consultants have simplified complicated disputes for clients across many industries and project types. 

We use forensic analysis techniques to uncover the root causes of delays, and we understand how to assess and quantify costs with impartiality. We’ve supported clients through all phases of dispute resolution, bringing construction industry expertise and objectivity to each case.

View the projects we’ve supported worldwide to learn more about our experience.

Contact Spire Consulting Group for Expert Guidance

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.

At Spire Consulting Group, we work together as one firm to serve you wherever you need us in the United States and abroad. You’ll get the highest level of services we offer.

Learn more about our dispute resolution services or call us at Spire Consulting Group to support you, no matter where you are in the life cycle of your project.

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.