International Construction Law Review
THE APPRAISAL OF CONTRACTORS’ ACCELERATION CLAIMS
DR FRANCO MASTRANDREA
Chartered Quantity Surveyor and Chartered Arbitrator
INTRODUCTION
Acceleration is increasingly on the agenda for construction projects, whether because of its greater exposure by way of express contractual provisions, or as a result of the growing recognition of its potential effectiveness as a remedy when it is deployed in response to breaches or maladministration of construction contracts. Its use for decades in the US in the form of constructive acceleration appears to continue unabated, and there is increasing evidence that that concept may be sought to be applied more broadly in common law jurisdictions.1
This article considers the main types of acceleration claims and matters relevant to their evaluation. It points to a number of suggested shortcomings in or unresolved issues with such claims, particularly in relation to the way in which they seek to allocate risks as between the contracting parties, and the quantification of recovery.
WHAT IS ACCELERATION?
Acceleration implies an increase in the speed, or pace, of construction work.2 This may involve carrying out the same work or more work in the original time contracted for (or as may have been extended) despite the presence of delays (or greater delays) in progress.3
1 The concept appears to have been the subject of limited attention in civil law jurisdictions. For an exception, see consideration of the “accélération par induction” in Dawcolectric Inc v Hydro-Québec 2011 QCCS 5999. The award by the first instance judge of “impact damages” (being the cost of additional technical and supervisory personnel and additional equipment rendered necessary by reason of delays and changes demanded by the employer, plus overhead and profit), was extended at 2014 QCCA 948, in which the Quebec Court of Appeal allowed recovery of impact damages also by sub-contractors.
2 See, for example, Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd (QBD TCC)) [1999] All ER (D) 1147; (1999) 66 Con LR 119; (2000) 16 Const LJ 316, at paragraph 50.
Cf. Amec Process and Energy Ltd v Stork Engineers & Contractors BV (QBD TCC)) [1999] EWHC Technology 238; (1999) 68 Con LR 17 at paragraph 101; Morrison-Knudsen Co Inc et al v BC Hydro and Power Authority (No 2) (1978) 85 DLR(3d) 186, at p 207; (1978) 7 Const LJ 227: “… accomplishing the work at a faster rate than was originally anticipated …”.
3 See, for example, Ace Constructors Inc v United States 70 Fed. Cl. 253 (2006) in which varied work arising out of differing site conditions was required to be carried out in the original timescale, the Government having failed to grant an extension of time.
Cf. MacTec Inc v Bechtel Jacobs Company LLC 346 Fed.Appx 59 (2009), involving the introduction by a sub-contractor of additional personnel, overtime, and extra shifts following the contractor’s refusal to grant an extension of time despite the presence of a substantial number of excusable delays.
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