ACCELERATION CLAIMS IN CONSTRUCTION

When it comes to construction, the saying “Time is Money” is a real deal. Construction contracts are usually
signed with some key milestones such as Start dates, Substantial completion dates, Completion dates, etc.
Failure to achieve these dates could result in the payment of liquidated damages by the contractor to the
owner. Acceleration comes when, for whatever reason, the project must be delivered ahead of the
contractual scheduled date. When this happens, the contractor is expected to be compensated through
change orders or by making Acceleration claims. Acceleration claims are claims for payment that are made
due to incurred costs associated with speeding up work – these costs usually include overtime payment,
compensation for increased workforce, additional scope, hiring more administrative staff, cost of speeding
up material delivery time and more. If work must be accelerated during the life of the project, then
acceleration claims by the parties performing that work should be expected.

Types of Acceleration
Acceleration could be classified into three broad categories, such as Voluntary Acceleration, Directed
Acceleration, and Constructive Acceleration.

• Voluntary Acceleration
  Voluntary acceleration is when the contractor voluntarily decides to accelerate the work on their own. In
  this case the contractor is not entitled to any compensation based on the cost of accelerating work. because
  it was their decision to accelerate. Therefore, voluntary acceleration is usually not compensable. A
  contractor may voluntarily accelerate its work, to make up for the contractor’s own delays. Another reason
  could be the anticipation of a price hike.

• Directed Acceleration
  Directed acceleration is usually straight forward. This occurs when the owner directs the contractor to
  accelerate the project schedule. Since the contractor has already presented a schedule acceptable by the
  owner as the baseline schedule and is now being forced by the owner to crush the project, it is reasonable
  that compensation will be made in exchange for that acceleration. This is usually accomplished through a
  formal change orders process. It must be understood that there is no universal method of estimating the
  compensation for directed acceleration since it involves some opportunity cost which is difficult to quantify.
  A negotiation of what is fair and reasonable acceptable by both parties is recommended. Directed
  acceleration is usually a compensable claim.

• 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. In this case The Contractor would argue that he is forced to take
  acceleration measures to avoid the imposition of liquidated damages in the face of what potentially might
  have become an unachievable contract time for completion. For Constructive Acceleration to exist there
  needs to be an instruction, whether implied or otherwise, from the owner or the owner’s representative.
  Whiles some jurisdictions argue that constructive acceleration has no place in contract and must not be
  entertained, others have compensated contractors for accelerating the project without the express direction
  of the owner.
  Conclusion
  Acceleration claims in construction can be exceedingly difficult to solve, therefore any Contractors thinking
  about making an acceleration claim should do well to discuss the merits of such claims with experienced
  construction lawyers or contact info@isdcmg.org

Author: Ernest Essah