8/2/2019 MBA Constructive Accn

1/2

HOME

ABOUT THE ASSOCIATION

ADVERTISING

MEMBER SERVICES

EXCELLENCE AWARDS

GREEN BUILDING

PUBLIC SERVICES

MEMBER LOGIN

CONTACT US

BLOG

NETWORKING

NEWS & INFORMATION

HOME > NEWS > WHAT IS CONSTRUCTIVE ACCELERATION?

NEWS

General

Health & Safety

Contractual & Legal

Financial

Press Release

Financial Services

Industry Affairs

Training

Government

Stakeholder Relations

Labour Relations

Finance and Economics

Consumer Protection

Green Building

Newsletters

Member News

LOGIN

Username

Password

forgot your password?

Remember Me

LOGIN

REGISTER

SUBSCRIBE

Get the most from yourassociation with Newsand Announcementsdirect to your email.

Your Email Address

SUBSCRIBE

WHAT IS CONSTRUCTIVE ACCELERATION?

Contractors and subcontractors often argue

that they have been forced to accelerate the

works to overcome delays caused by the

architect, engineer o r principal agent.

Normally, in the absence of an agreement

to accelerate, the contractor is not entitled

to decide unilaterally to accelerate and

expect the employer to pay the costs.

The contractor or subcontractor may,

however, argue that he chose to accelerate

faced with the agents refusal or neglect to

grant a proper extension of time. This issometimes referred to as a constructive

acceleration order.

Constructive acceleration is defined by the US Corps of Engineers as;

An act or failure to act by the Employer which does not recognize that the contractor has encountered

excusable delay for which he is entitled to a time extension and which required the contractor to accelerate

his programme in order to complete the contract requirements by the existing contract completion date.

This situation may be brought about by the Employers denial of a valid request for a contract time

extension or by the Employers untimely granting of a time extension.

In the Australian case of Perini Pacific v Commonwealth of Australia (1969) Mr Justice Macfarlane in the

Commercial Court of New South Wales indicated clearly that this type of claim could only be on the basis

of some proven breach of contract by the owner coupled, of course, with proof of damages in the form of

completion to time by expenditure greater than would otherwise have been incurred. In that case, the

breach consisted of a refusal or failure by the certifier to give any consideration at all to the contractors

applications.

In the case in British Columbia of Morrison-Knudsen v BC Hydro & Power the owner, unknown to the

contractor, had secretly agreed with a government representative that no extension of time would be

granted in view of the pressing need for electricity by the contract completion date. All requests for an

extension of time w ere refused and the contractor carried on and m anaged to finish the project with only

slight delay. The Court of Appeal of British Columbia held that the contractor could have rescinded on the

basis of a fundamental breach of contract had he known the real reason for the refusals and, in that event,

would have been entitled, on the basis of established case law, to put his claim alternatively on a quantum

meruit basis and so to escape from the original contract prices. The fact that the contractor had not

rescinded but had completed the project limited his remedy to the usual one of damages, measured in this

case in terms of the additional expense incurred in completing to time, i.e. in accelerating progress.

Similarly in W Stephenson (Western) Ltd v Metro Canada Ltd (1987) the Canadian Court held that, by

stating in no circumstances would the contractor receive an extension of time for completion, the employer

had deliberately breached the contract and it awarded damages calculated by reference to the contractors

consequential acceleration.

The English courts have been a little slow at recognising a situation where a claim for constructive

acceleration would be r elevant. However, the situation has been changed by the decision in Motherwell

Bridge Construction Ltd v Micafil (2002). In this case Motherwell Bridge was a subcontractor to Micafil in

connection with the construction of an autoclave for BICC in Kent. Additional welding was required by

Micafil which involved a substantial amount of additional man hours. Micafil failed to grant an appropriate

extension of time. In an effort to complete by the original completion date, Motherwell Bridge incurred

substantial additional costs which formed the subject of a claim.

The matter was referred to court which found in favour of Motherwell Bridge. Judge Toulman considered

that Motherwell Bridge was entitled to an extension of time based upo n the period of delay which would

have been incurred using the original labour force, and as Micafil failed to grant an extension of time,

Motherwell Bridge was entitled to be paid the acceleration costs.

It would seem that to recover payment in respect of constructive acceleration a contractor or subcontractor

must be able to demonstrate the following:

1. An entitlement to an extension of time

2. Proper notice as required by the contract has been served

3. The employer or his agent has failed to grant an appropriate extension of time

4. The employer has requested completion by the original completion date

5. The contractor has incurred additional costs due to taking acceleration measures

6. The cost to the contractor in taking acceleration measures when estimated in advance of the

SHARE / PRINT THIS PAGE

2009

May

June

July

August

September

October

November

Mediation: The Civilized Wayto Resolve Disputes

Troubles with Tenders?

Tender Notice and Invitation to

Association MembersThe CIDB and You

National Healthcare Reform

Not The Gravy Train

Media Statement, MinisterBlade Nzimande

Competition Crackdown

Chief Inspector AddressesSafety Practitioners

Reasonable Steps To Avoid OrReduce Delay

Gamalakhe Community projectConcluded

Sexwale and Shoddy Houses -Paddy Hartdegen

Master Builders Newsletter -Edition 16

KwaZulu-Natal Leads the Wayin Safety Standards

JBCC True DemandGuarantee

Always Use a RecognisedForm of Contract Agreement

Obscuring Someone ElsesView

Solar Soulmates

MBSA Payment Quality SurveyFindings

Recovery of Loss Arising FromContract Instructions

Builders Newsletter - Edition17

Costs Incurred In Preparing aloss and Expense Claim

ARCHIVE

Page 1 of 2Master Builders KwaZulu-Natal - What is Constructive Acceleration?

2009/11/28http://www.masterbuilders.co.za/news/2009/August/what_is_constructive_acceleratio ...

8/2/2019 MBA Constructive Accn

2/2

decision being made to accelerate, is less than the cost resulting from an overrun to the completion

date.

BRUCE LYLE | MEMBERSHIP SERVICES MANAGER

(Original article by R D Pickles - former Membership Services Manager)

SHARE / PRINT THIS PAGE

Ma st e r B ui ld er s Kw aZu lu -N at al 20 09 Si te ma p | Di sc la im er | Pr iv ac y Po li cy | Si te by Bl ac k Sq uar e

Page 2 of 2Master Builders KwaZulu-Natal - What is Constructive Acceleration?

2009/11/28http://www.masterbuilders.co.za/news/2009/August/what_is_constructive_acceleratio ...