§14.4 Acceleration Claims

• Jurisdiction: Washington

§14.4 ACCELERATION CLAIMS

Acceleration occurs when the contractor performs its work at a faster rate than required by the original contract. Contracting & Material Co. v. City of Chicago, 20 Ill. App. 3d 684, 314 N.E.2d 598, 604 (1974), rev'd on other grounds, 349 N.E.2d 389 (Ill. 1976). When a project's schedule is accelerated, project costs are likely to increase if the contractor is forced to incur overtime, inefficiency, or trade stacking, or is forced to pay premiums to suppliers to deliver manufactured items with expedited lead times. Compensable acceleration occurs when the owner requires the contractor to complete construction as originally scheduled rather than within the extended time the contractor is entitled to as a result of excusable delays. Compensable acceleration may be either "directed" or "constructive." When a contractor accelerates its performance voluntarily for its own purposes, such as overcoming inexcusable delay, it is deemed a "voluntary acceleration" and is not compensable. Mobile Chem. Co. v. Blount Bros. Corp., 809 F.2d 1175 (5th Cir. 1987); Appeal

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of McNutt Constr. Co., ENGBCA. No. 4724, 85-3 B.C.A. ¶18,397 (Sept. 17, 1985); 5 Bruner & O'Connor §15:101.

(1) Directed acceleration

When an owner expressly orders completion earlier than the contract date, it "is referred to as an 'actual' or 'directed' acceleration and ordinarily is compensable." 5 Bruner & O'Connor § 15:89. Typically, proof of directed acceleration will require that (1) any delays necessitating the directed acceleration were excusable or compensable; (2) the contractor was ordered to accelerate (e.g., through unilateral change order or demand); and (3) the contractor in fact accelerated and incurred additional costs. See Norair Eng'g. Corp. v. United States, 229 Ct. Cl. 160, 666 F.2d 546, 548 (1981). Additional requirements that may be imposed by courts or contract terms include that (1) the contractor requested a time extension; (2) the owner denied the request for a time extension; and (3) the contractor provided notice to the owner of its acceleration claim. See id. at 548 n.5.

(2) Constructive acceleration

Even though an owner may not expressly order acceleration, statements or conduct to the effect that the original schedule should be maintained despite excusable delay can equate to an affirmative directive. Such an implied order is called "constructive acceleration." It has been held that a request to accelerate, as...