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The second theory of acceleration is based on the effects of excusable delay on the contractor’s time of performance. When a contractor encounters excusable delay in completing a contract, the contractor is entitled to an equivalent, and timely, extension of the contract time in which to complete the work. When the owner or its representative refuses the extension or simply does not respond, a constructive acceleration of the contract exists since the contractor effectively has less time than originally promised in which to perform the required work.

Some changes clauses specifically allow for the owner to accelerate the time of performance of the work. Generally, when the contractor is directed to complete the work in advance of the scheduled completion date, and the order is signed by the owner or his representative, it is clearly an ordered change and the contractor’s claim for additional compensation should be presented in accordance with the standard change order procedures.

A more complex situation arises when the contractor encounters an excusable delay and requests an extension of the contract time but the owner refuses to recognize the delay and requires that the contract be completed by the originally specified date. Or, in another situation, the owner may recognize a delay but of a shorter duration than that to which the contractor is entitled. In these circumstances the contractor is placed in the position of either risking contract default if it finishes at a time later than that required by the owner or expending extra funds in order to overcome the excusable delay and finish the contract as demanded. Although the owner may not have issued any express order under the changes clause which would qualify as ordered acceleration, many courts have developed the doctrine of constructive acceleration to encompass those situations where the owner acts in such a way that it will be deemed to have ordered acceleration.

Courts generally look to the following factors when analyzing a claim for constructive acceleration:

  1. The contractor has encountered excusable delay for which it is entitled to a time extension;
  2. The contractor specifically requested a time extension from the owner according to the contract provisions;
  3. The owner failed or refused to grant the extension;
  4. The owner either: (i) ordered completion within the original performance period, or (ii) acted in such a way that it was clear that the owner still required the contractor to complete within the original performance period;
  5. The contractor gave notice to the owner that it considered the actions of the owner a constructive change order for acceleration; and
  6. The contractor actually incurred excess costs as a result.

When faced with a possible acceleration situation, the contractor should make all reasonable attempts to complete the project on schedule and carefully document all impact costs resulting from the acceleration. Failure to complete the project on time exposes the contractor to potential claims by the owner for liquidated damages, lost rents, lost profits, and extra financing costs, and may weaken the contractor’s claim for acceleration damages.