The Schedule

What is constructive acceleration?

1. A forced completion of the contract work in a shorter period than should have been allowed by the issue of proper contract time extensions

What is directed acceleration?

1. Completion of contract work at a pace that is faster than would be ordinarily required pursuant to a directive from the owner.

"No damage for delays" clause

1. Contractor's relief in the event of a delay ("for any cause whatsoever") is limited to an extension of contract time only

What are the most common causes for compensable delays?

1. Defective drawings or specs - Usually protected by implied warranties under Spearin Doctrine 2. Failure to provide access - Site availability must be granted at NTP (notice to proceed) - Owner must also grant access to work site during all phases of construction - The risk may be offset by an Exculpatory clause 3. Improper site preparation 4. Failure of owner to supply materials or labor

What is accelerated performance with delay?

1. Delay occurs on project and owner mandates that schedule must be reduced to limit effects of the delay 2. Contractor accelerates work to attempt to finish on time 3. Contractor entitled to acceleration costs 4. If delay was compensable, contractor also entitled to extended overhead costs if unable to meet original contract deadline.

What is Voluntary Acceleration?

1. Elected acceleration by the contractor to either reduce time related costs by accelerating the work pace or to make up for unexcused delays to get the work back on the contract schedule

What are the 4 elements to proving constructive acceleration?

1. Entitlement to time extension 2. Failure of owner to issue time extension 3. Proof of extra costs 4. Completion before date to which contract should have been completed

Most common causes for compensable delays pt. 2

1. Failure to provide plans/approve shop drawings 2. Failure to coordinate prime contractors 3. Failure to give timely orders for work 4. Failure to make timely payments to contractors - Generally cannot recover additional time, but may recover interest and possible consequential damages 5. Failure to inspect - Owner may be liable for time extension if inspections are unreasonably intensive or repetitious

What is Float?

1. Float refers to an amount of additional time, or contingency, an a contractor's fixed completion schedule that is over and above what he believes is actually needed to finish the project, provided everything goes according to plan

Delays and suspensions both cause an interruption in the work that may result in...?

1. Increased direct cost to the project 2. Increased indirect costs to the project 3. Inefficiencies in labor resulting in increased labor costs

What are Non-compensable excusable delays?

1. May include weather, Acts of god, labor problems - Typical labor problems that fall into this category are strikes and labor disputes - Labor issues that are caused by the contractor or are a result of a labor shortage are not excusable

What are delays?

1. May slow down or temporarily interrupt work, but are not triggered by a formal notice

Types of Delays

1. Non-compensable excusable delays 2. Compensable excusable delays 3. Non-excusable delays

What is a delay with no time extension?

1. Owner delays project but does not issue time extension 2. Contractor accelerate work to complete project by original completion date 3. Contractor entitled to acceleration costs if delay was compensable or non-compensable excusable

What is delay with time extension?

1. Owner issues time extension equal to amount of delay 2. Contractor continues to work after delay at normal work rate 3. Contractor entitled to extended overhead costs if delay was a compensable excusable delay

What is accelerated performance without delay?

1. Owner mandates that project must be completed ahead of schedule indicated in contract 2. Contractor entitled to acceleration costs

Proper contractural procedures for constructive acceleration situations (steps 1 &2)

1. Promptly file a claim for contract extension with the owner; include critical path method analysis of delay impact 2. If change order not promptly issued, contractor should protest in writing and advise owner that operations are being accelerated to meet original schedule.

What are suspensions?

1. Purposeful stops (e.g., formal notice) of the work by the owner

What are concurrent delays?

1. Situations caused by excusable and non-excusable delays occurring simultaneously 2. Traditional rule of law stated that neither party could recover damages if concurrent delays occurred 3. Now, concurrent delays are a complex legal issue - Scheduling experts attempt to assign various delay causes to the appropriate parties - Only if owner caused delay along critical path will damages be apportioned to owner

Is the "No damage for delays" clause enforceable in court?

1. Strict exculpatory (declare that someone is not guilty of wrongdoing) clause that many courts do not enforce 2. It may be viewed as a contract of adhesion

Who owns the float?

1. Typically the contractor owns the float, unless they give it away in the contract terms and conditions

"Time is of the essence"

1. Usually found in all contracts 2. Simply means that contractor is required to complete project by a specified time without delays 3. Contractors may try to include language that states "time is of the essence" for owner responsible items: - Payment of invoices - RFI answers - Submittal review, etc. 4. May also be construed against the owner if they are responsible for causing the delay to the progress of the work

What are compensable excusable delays?

1. generally caused by owner's actions or inactions 2. Some C-E delays do not require the project to finish late to prove owner's fault; contractor must merely prove reasonable schedule would have achieved an early completion

Proper contractural procedures for constructive acceleration situations

3. Contractor should: (a) follow up with detailed report of daily costs, (b) provide estimated total of all acceleration efforts, and (c) ensure that work will be completed by the date to which the contract should have been extended 4. Contractor must document all acceleration costs in the event the owner does not agree & claim arises

What is acceleration?

Completion of the contract work or part of the contract work at a more rapid rate than required by the contract