15.6 Acceleration

• Library: Virginia Construction Law Deskbook (Virginia CLE) (2019 Ed.)

15.6 ACCELERATION

15.601 In General. Acceleration is the increasing of the pace of a work activity or shortening of the time for performing the work activity or the

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contract as a whole. Acceleration is not delay ²⁵¹ or disruption ²⁵² of the work, although acceleration is often a consequence of a delay or disruption.

Acceleration often takes the form of increased manpower, multiple shifts, overtime, weekend work days, and added equipment. The added costs of acceleration may be compensable or not compensable depending on the circumstances that caused the acceleration and the parties' respective assumptions of risk under their contract.

Acceleration claims fall into two categories: (i) claims for actual acceleration, which arise when a contractor has been expressly ordered to pick up the pace of work; and (ii) claims for constructive acceleration, which arise "when a contractor has a justified claim for an extension of time, but is required to incur additional expenses because the project owner refuses to grant the extension and requires the contractor to complete the project by the original completion date." ²⁵³

15.602 Directed Acceleration. Directed acceleration is acceleration in response to an express directive to accelerate. Directed acceleration by itself, however, is not necessarily a basis for compensation for any costs added by the acceleration effort. For example, General Condition 19(e) of the Commonwealth of Virginia's General Conditions of the Construction Contract provides, in part:

(e) Progress Delay: Should any of the following conditions exist, the owner may require the Contractor to prepare, at no extra cost to the owner, a plan of action and a recovery schedule for completing the Work by the Contract Time for Completion or the Contract Completion Date:

(1) The Contractor's monthly project report indicates delays that are, in the opinion of the A/E or the Owner, of sufficient magnitude that the Contractor's ability to complete the Work by the scheduled Time for Completion or the Contract Completion Date is brought into question;

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(2) The CPM schedule sorted by early finish shows the Contractor to be thirty (30) or more days behind the critical path schedule at any time during construction up to thirty (30) days prior to scheduled Substantial Completion date;

(3) The Contractor desires to make changes in the logic (sequencing of Work) or the planned duration of future activities of the CPM schedule which, in the opinion of the Architect/Engineer or the Owner, are of a major nature.

To enforce the requirements of General Condition 19(e), subsection (a) of General Condition 19 allows the Commonwealth to withhold progress payments until there is compliance:

No progress payments will be payable to the Contractor until after it has submitted a preliminary schedule which is acceptable to the Owner. Neither the second progress payment nor any subsequent payment shall be payable to the Contractor until it has submitted a fully complete Project schedule accepted by the Owner. Nor shall subsequent progress payments be payable to the Contractor unless and until he submits the...