The final requirement for recovery of damages in a constructive schedule acceleration claim is that the contractor shows a causal relationship between his claimed costs and his attempt to speed-up the completion of the work. An accepted way to accomplish this is through a critical path method (CPM) construction schedule analysis. If the construction contractor fails to meet this burden, recovery may be denied, even if the other requirements are met.
SCHEDULE ACCELERATION COSTS
One of the key tests to be applied in making the price adjustment is whether the costs could have been avoided except for the requirement to accelerate. It is, therefore, not surprising to find attempts being made to allocate the increased costs between those attributable to the owner’s fault and those that would have been incurred in any event, or those attributable to the contractor’s inefficiency.
Typical construction schedule acceleration costs include:
- costs of adding more labor and machinery to the project,
- overtime premium costs,
- increased field supervision,
- inefficiency costs,
- costs resulting from working under adverse weather conditions
- stacking of trades,
- increased overhead,
- additional subcontractors, and,
- added or expedited material and equipment delivery charges.
The contractor’s obligation to mitigate costs and damages is always present, and any elements of cost savings realized by the contractor as a consequence of acceleration should be offset against the increased costs incurred. If a contractor accelerates by 50 percent when only 10 percent was needed, the difference may not be recoverable.
SCHEDULE ACCELERATION WITH CPM SCHEDULE FLOAT
One of the more complex aspects of construction schedule acceleration claims is schedule float, i.e., who owns the float in the contractor’s CPM schedule? This issue is further complicated when a subcontractor accelerates both critical and non-critical path activities that are not part of the critical path of the general contractor’s schedule, but may represent the critical path of the subcontractor’s schedule. In other words, regarding damages, is there a distinction between the acceleration of critical path versus non-critical path work? Similarly, is there a distinction between the acceleration of work on the general contractor’s critical path versus the acceleration of work on the subcontractor’s critical path work?
We are unaware of clear direction from the courts on issues such as the acceleration of work on the general contractor’s critical path versus that on a subcontractor’s critical path, and invite input from the legal community. However, courts have ruled that float time is not for the exclusive use of any single party, but is available to either party on a first-come/first-serve basis.
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