Acceleration is increasingly on the agenda for construction
projects. Its use for decades in the U.S in the form of
constructive acceleration appears to continue unabated, and there
is some evidence that the concept may be sought to be applied more
broadly in other jurisdictions.
Acceleration can be achieved in a variety of ways: by changing
the design or specification of permanent and/or temporary works,
altering methods of working, re-sequencing work, introducing
additional (or more expensive) resources whether material plant or
labour, working overtime, extending working hours, introducing
shift working, etc.
The SCL ‘Delay and Disruption Protocol’, Second Edition,
2017, defines acceleration by reference exclusively to
contractor-driven strategies.
Although acceleration has traditionally been discussed in the
context of project, or critical path, delays, that seems too narrow
a focus. The underlying justification for acceleration claims can,
it is suggested, be put more broadly: the contractor’s wish
through acceleration to contain its costs or losses, or increase
its profit. Thus, a contractor hindered by defaults of the employer
which lead to non-critical delays would typically be entitled, as a
remedy for breach of contract, or according to the contract’s
loss/expense provisions, to localised time-sensitive and/or
disruption costs.
For a more
comprehensive review of this topic see Mastrandrea, F,
“Localised Delays: The Poor Relation in Construction Claims
Appraisals?”, [2023] ICLR 112.
The contractor sees advantage in those circumstances in taking
exceptional accelerative measures as a potential means of reducing
overall costs it incurs, and claims additional expenditure in
pursuing that acceleration, and proves that expenditure (which can
in all cases of acceleration be a challenging task, being an
exercise in incremental costing). If that is right, acceleration is
not confined to seeking to reduce the duration of critical path
activities.
Acceleration directed at some failure on the part of the
employer, is to be distinguished from acceleration motivated by
some other consideration. A contractor making poor progress (for
whatever reason) will often find itself under significant pressure
from an employer to improve upon that progress. The additional cost
of accelerative measures taken in response to legitimate demands by
an employer for the contractor to pick up the pace of works will
typically be unrecoverable.
By contrast, additional costs incurred by a contractor
instructed or directed to accelerate where the contractor is not
itself falling behind will typically be recoverable.
It seems unlikely that, in the absence of an express provision
to that effect, an obligation on the part of the contractor to
accelerate arises simply by reason of the application of
common-sense principles, as presumably the contractor will
ordinarily be entitled to say that if it is late in completion the
employer will have its remedy in delay damages.
Constructive acceleration, widely recognised in the U.S., is
intended to denote deemed, as opposed to instructed, acceleration.
Notwithstanding some recent suggestions otherwise in response to
unfolding case law,
A recent
example popularly used for illustration is V601 v. Probuild [2021]
VSC 849.
it has not found fertile ground in other common law
jurisdictions
There appear
to be few examples of the concept being pursued in civil law
jurisdictions: for an exception, see the
‘accélération par induction’ in Dawcolectric
inc. c. Hydro-Québec, 2014 QCCA … Continue reading
where, beyond instructed acceleration, compensation is typically
limited to accelerative measures taken by way of a justifiable
response, such as mitigation, to a breach of contract. The
challenge then becomes one of identifying the triggering breach.
This is typically a failure on the part of the employer or its
agents properly to discharge its contractual obligations (e.g. to
grant possession of the site, to provide timely design information,
by the contract administrator to carry out the employer’s
functions, or illegitimate collusion with the employer such as by
failing to award extensions of time properly due).
As with other claims a contractor’s claim for acceleration
may be barred because of its failure to submit its claim in
accordance with the express contractual requirements, many of which
may be exacting, although exceptions, such as waiver and the
employer’s own knowledge, may apply in particular
jurisdictions.
A disincentive to acceleration may in future be the increasing
availability – by way of developing standard forms of
contract and/or statutory reforms – of adjudication or other
expedited forms of dispute resolution to decide delay claims
speedily.
Footnotes
1 For a more comprehensive review of this topic see
Mastrandrea, F, “The Appraisal of Contractors’
Acceleration Claims”, [2024] ICLR 27.
2 For a more comprehensive review of this topic see Mastrandrea, F,
“Localised Delays: The Poor Relation in Construction Claims
Appraisals?”, [2023] ICLR 112.
3 A recent example popularly used for illustration is V601 v.
Probuild [2021] VSC 849.
4 There appear to be few examples of the concept being pursued in
civil law jurisdictions: for an exception, see the
‘accélération par induction’ in Dawcolectric
inc. c. Hydro-Québec, 2014 QCCA 948.
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