Acceleration occurs when the contractor takes additional measures — additional labour, additional shifts, additional plant, additional supervision, premium-time working — in order to complete the works earlier than would otherwise have been the case. Acceleration cost is the additional cost incurred as a result of those measures. Acceleration claims arise in a variety of circumstances and are quantified in a variety of ways, but the common thread is that the contractor has spent more in order to compress the programme.
Two principal categories of acceleration are recognised: directed acceleration and constructive acceleration. Directed acceleration occurs where the employer has expressly instructed the contractor to accelerate, typically pursuant to a variation or acceleration agreement that defines the contractor's entitlement to be paid for doing so. Directed acceleration claims are usually relatively straightforward in principle, although the quantification of the additional cost can be substantial.
Constructive acceleration is more contentious. It arises where the contractor has been entitled to an extension of time but the employer or engineer has refused to grant it (or has granted an inadequate extension), and the contractor has been required to accelerate in order to meet the unextended completion date. The contractor argues that the cost of the acceleration is the consequence of the employer's wrongful refusal to extend time, and should be recoverable as damages or as loss and expense.
Constructive acceleration is well-established in some jurisdictions, notably the United States, but has had a more uneven reception in other jurisdictions. In the United Kingdom, the law on constructive acceleration is less developed than in the United States, and tribunals have sometimes been cautious about the doctrine. In the Middle East, the position depends on the governing law of the contract, but the underlying logic — that a contractor should not be left to bear the cost of measures taken in response to the employer's wrongful refusal to extend time — has considerable force.
The quantification of acceleration cost requires the identification of the acceleration measures actually taken, the additional cost properly attributable to those measures, and the deduction of any costs that would have been incurred in any event. The principal heads typically include premium-time working, additional shift allowances, additional labour and plant, additional supervision, and the costs associated with sequencing changes that the acceleration has required.
An important issue in acceleration claims is the question of effectiveness. The contractor must show not only that acceleration measures were taken and that additional cost was incurred, but also that the acceleration in fact achieved (or would have achieved) a meaningful compression of the programme. Acceleration measures that did not in fact accelerate the works are not properly recoverable as acceleration cost, although they may be recoverable on other bases.
Our quantum experts at Construction Expert Witness have addressed acceleration claims on a wide variety of projects across the UAE and GCC. We work closely with our delay expert colleagues to ensure that the time and money analyses are properly integrated, and we present acceleration claims with the rigour and transparency that tribunals expect.