Delays on a construction project can greatly increase the contractor's costs. And often the contractor incurs further expense as a result of forced acceleration made necessary by the delay. At other times, acceleration is requested by the owner when there was no original delay involved. In either case, legal action or arbitration may be needed if forced acceleration is necessary, the job is completed on time, and the owner refuses to pay for increased costs. To successfully present his case, the contractor must first prove his right to damages and must then substantiate increased costs.
AFFIRMATIVE AND CONSTRUCTIVE ACCELERATION
Job acceleration can occur in two ways: affirmative action by the owner or constructive inference that acceleration is to occur. Affirmative action by the owner is clearcut. When the owner specifically orders the contractor to speed up construction, the acceleration is required by affirmative action. Constructive acceleration is more difficult to define. Most of the time constructive acceleration occurs when there is a delay in the job. The owner may infer that the job is to be completed on schedule, requiring acceleration even though he gives no direct order to that effect.
Before damages can be claimed, there are several elements that must support the contractor's right to damages:
- There must have been an excusable delay which would have entitled the contractor to an extension.
- The contractor must have requested an extension.
- The owner must have refused to grant an extension or failed to respond to an extension request within a reasonable time.
- The contractor must show that he was required to complete the contract without an extension, that he finished the job on time, and that he incurred additional costs in doing so.