Acceleration is a means by which work that is behind schedule is caught up to the contract completion date. There are many methods to achieve acceleration, such as placing extra laborers on the job, working overtime, obtaining more equipment, or utilizing more efficient equipment. Acceleration is usually expensive, and the central concern when acceleration is required is what party or parties will incur the extra costs to complete the job on the projected completion date.
If a contractor is responsible for a delay, and thus acceleration is needed, it will be likely that the responsible contractor will incur the costs of acceleration. Merritt-Chapman & Scott Corp. v. State, 54 A.D.2d 37, 386 N.Y.S.2d 894, (3d Dep’t 1976). Also, if a contractor elects to voluntarily accelerate work to finish the job early or on time to avoid liquidated damages, it will not be entitled to extra compensation and will bear responsibility for additional costs. When another contractor causes a delay in the project, the general contractor will be held liable for the acceleration costs of the subcontractor who is unable to begin work, because of the delay, until later than scheduled. Wolff & Munier, Inc. v. Whiting-Turner Contracting Co., 946 F.2d 1003 (2d. Cir. 1991). It has been held that where both the owner and the general contractor are equally responsible, due to early delays, for the subcontractor’s losses, they will both be equally liable for the acceleration costs. Mobil Chemical Co. v. Blount Bros. Corp., 809 F.2d 1175 (5th Cir. 1987).
Actual acceleration occurs when an owner orders a contractor to finish the contract work before the expected completion date set in the contract, or orders the contractor to complete the work before the a revised completion date and lets it be known that it is accelerating the completion date. In this instance, a contractor will be entitled to increased costs due to the acceleration.
Constructive acceleration occurs when an owner orders a contractor to complete the work by the contract completion date despite an excusable delay or the addition of extra work that entitles the contractor to a time extension. When an extension of time is not recognized, it will force the contractor to perform the work in a shorter period of time that would have been available had an extension been given. There are five elements of constructive acceleration, each of which must be proven: 1) the contractor encounters an excusable delay or is ordered to perform extra work that affects the “critical path;” 2) the owner had knowledge of the excusable delay or extra work and that it affected the “critical Path;” 3) the owner failed or refused to grant the contractor’s request for an extension of time; 4) there was some act or statement by the owner that could be construed as an acceleration order,; and 5) the contractor accelerated performance.
Acceleration ordered by an owner can be either direct or indirect. Direct orders are usually obvious, but what may not be obvious is whether the owner intends to accelerate a job when it asks the contractor to adhere to the original schedule despite extra work or excusable delay, stresses the urgency of the project, or threatens the contractor with termination or liquidated damages.
Damages due to acceleration differ from damages due to delays. Acceleration damages occur from increased labor costs because of the need for more workers on the job or overtime, not because of increased labor rates. Also, loss of productivity damages may result when more laborers than can efficiently work together are required to work in a limited area or time so that the project can be completed sooner. Thus, acceleration costs are due to increased direct and indirect costs due to performance later than anticipated.