2009-12-16T13:41:00.012-05:00

Schedule Acceleration – What Every Contractor Needs to Know

Schedule acceleration is a bi-product of delay, typically resulting from the requirement to shorten the original planned performance period, to incorporate additional or changed work into the original duration, or to recover lost time that has occurred during the course of construction. It usually occurs in one of two ways. The first and most easily understood, recognized and accepted way is when a contractor is required to accomplish the same work within an intentionally shorter period. This is known as “Contract Directed or Express Acceleration”. The second, but more complicated, way is when a contractor is required to accomplish increased, additional or delayed work within the same period, which is without the benefit of a contract extension of time (EOT). This is known as “Constructive Acceleration”. The basic requirements for both types of acceleration are as follows.

Contract Directed or Express Acceleration

When an owner and/or developer either recognizes the effects of culpable delays on the construction work and requires the contractor to accelerate the remaining work or intentionally shortens the contract duration without the occurrence of any delays, the acceleration is said to have been "express" or "directed". In a directed or express acceleration effort, the schedule is compressed by shortening activity durations and re-sequencing activities to allow them to be performed concurrently rather than sequentially; both of which typically results in reduced efficiency (i.e. trade stacking) and increased costs caused from the acceleration effort.

Directed acceleration is seldom disputed. The owner generally acknowledges that the contractor is entitled to its full contract terms and conditions to complete the work. Moreover, the costs of acceleration, carried out pursuant to a directive by the owner and/or developer that shorten the available contract duration, are usually negotiated and agreed upon before the contractor begins the acceleration effort.

Constructive Acceleration

Constructive Acceleration, on the other hand, is when a contractor has a valid claim for an EOT, but the owner refuses to adjust the project schedule or completion dates, thus requiring the contractor to accelerate to complete the project by the dates originally specified in the contract or as adjusted by previous change orders.

A contractor's claim for constructive acceleration must meet the following criteria:

1. The contractor experiences an excusable delay of merit; a result of causes that would entitle the contractor to a time extension under the contract

2. The contractor provides proper notice to the owner of the delay and requests an extension of time, in accordance with the contract.

3. The owner and/or developer fails or refuses to grant a time extension to the contractor

4. The owner and/or developer requires the contractor to complete the work in accordance with the original schedule, the date adjusted by prior change orders or indicates an intention to penalize the contractor for failing to complete the work in per the original contract schedule

5. The contractor endeavors to accelerate by working additional hours, committing additional resources, or through other means to meet the project’s milestone completion dates

6. The contractor incurs additional expense in carrying out the acceleration effort

The contractor accelerates to avoid the possibility of being ruled in breach of the contract by completing the work late if it is later determined that the contractor was not due any additional time. This aspect of acceleration is commonly the subject of disputes.

Each form of acceleration presents a risk to the contractor. When given a choice to accelerate or not to accelerate, careful and deliberate evaluation of the pros and cons of each must be considered. At times, contractors do not appreciate the fact that they face this choice, and the accelerated effort is almost voluntary.

As a general rule, contractors need to use prudent judgment to ensure that all contractual provisions are adhered to before accelerating. To that end, it is strongly recommended to always seek appropriate legal advice before making the decision to accelerate in the absence of both an EOT, when one was claimed and when under a directive or express request by the owner and/or developer for acceleration.

Related discussions to this commentary can be found on our firm’s Info section. For additional information on how C.E. Support & Associates, Inc. can assist you on your current and future projects please return to our company web site at www.cesupportinc.com.

Michael J. Westrich, BSCE, PSP

Founder & President

C.E. Support & Associates, Inc.

Dec 2009

References
(1) Pinsent Masons, Autumn 2009 Ed., Contractor’s Legal Guidance Note
(2) Interface Consulting International, Inc., July 30, 2007, Constructive Acceleration
(3) Exponent, 2008 Ed., Time Extension/Delay/Acceleration Analysis