Construction Schedule Experts
DIRECTED SCHEDULE ACCELERATION
Non-excusable Schedule Delays
Holloway Consulting has found that requiring a contractor who is behind schedule due to non-excusable delays to make up time and get back on schedule is typically not a compensable acceleration order. If a contract contains a clause that authorizes the owner to require the contractor to work overtime to overcome non-excusable delays get back on schedule, and the owner exercises this power and orders a contractor who has fallen behind to speed up performance, the contractor may only be able to recover costs in a construction damages claim that are proportional to the owner’s concurrent delays to the schedule.
Excusable Schedule Delays
Based on Holloway’s understanding of case law (although we are construction schedule experts, we neither practice law nor perform extensive legal research in this area), directed acceleration of performance will be held to have resulted, and the contractor will probably have the right to a price adjustment, when the following elements are present:
1. The contractor has encountered an excusable and compensable delay that is unforeseeable and beyond his control and for which he is entitled to a time extension;
2. The general contractor requested a time extension from the owner (or the trade contractor from the general contractor, as the case may be) according to the contract provisions;
3. The owner failed or refused to grant the extension, and either (a) expressly ordered completion within the original performance period, or (b) acted in such a way that it was clear that he required the contractor to complete within the original performance period;
4. The contractor gave notice to the owner that he considered the actions of the owner to be directed acceleration;
5. The contractor actually accelerated the work by adding additional time and/or resources to the job, and
6. The contractor incurred additional costs as a result.
The Holloway Consulting Group, LLC – Construction Experts
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