Constructive acceleration, on the other hand, is when a contractor has a valid claim for a time extension, 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. Contractors may have justifiable claims for time extensions due to owner changes or other projects delays and disruptions for which contractual entitlement exists or in situations where there is no contractual entitlement and the delays or extensions have occurred through no fault of the contractor. Constructive acceleration is a concept that is not as well known or easily understood as directed acceleration and thus is frequently the subject of construction claims. The root cause of delays is often a complicated and hotly debated topic on construction projects, and the parties may not agree on who is responsible for the delay and who should bear the acceleration costs.
A claim for constructive acceleration typically must demonstrate the following:
- The contractor experienced an excusable delay.
- The contractor provided proper notice to the owner of the delay and requested an extension of time.
- The owner rejected the time extension request.
- The owner directed the contractor to complete the project by the original completion date or the date adjusted by prior change orders.
- The contractor made reasonable attempts to accelerate resulting in additional project costs.