What is Constructive Acceleration?

“Acceleration following failure by the Employer to recognise that the Contractor has encountered Employer Delay for which it is entitled to an extension of time and which failure required the Contractor to accelerate its progress in order to complete the works by the prevailing contract completion date.”

That is the SCL Protocol’s definition of constructive acceleration. But, what if the Contractor and Employer do not agree on an EOT?

In the case of Motherwell Bridge v Micafil, Motherwell accelerated its scope of work to accommodate the earlier delays of Micafil so the Date for Completion could be maintained.

Motherwell notified Micafil of the 3-week critical path delay and provided an acceleration strategy. Motherwell were not instructed to accelerate, nor where they given an extension of time. Rather, Motherwell, at its own cost, accelerated its program.

His Honour Judge Toulmin awarded Motherwell an EOT to the Date for Completion, had it not been for the accelerated program i.e., after the actual Date of Completion. Motherwell were also entitled to claim the associated prolongation costs between the Date of, and for Completion. Interestingly, Motherwell were not entitled to recover the associated acceleration costs.

The Motherwell Bridge v Micafil case highlights that, although Motherwell were entitled to an extension of time, they were not entitled to acceleration costs; even though Micafil agreed to the proposed acceleration strategy, they did not issue an instruction to accelerate.

In the case of Perini Corporation v Commonwealth of Australia Perini submitted several EOT claims that were subsequently rejected by the Director of Works. Moreover, the Director of Works took an excessive amount of time to make his decisions regarding the EOT claims.

Perini accelerated their works to meet the Date for Completion and to avoid liquidated damages. Justice Macfarlan found that the failure of the Director of Works to respond to Perini’s EOT claims in a reasonable time was a breach of contract.

Perini effectively constructively accelerated their works and they were successful in claiming the associated acceleration costs.

The case of V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2021] VSC 849 is similar to Perini v Commonwealth of Australia in that it was the Principal’s breach of contract that resulted in the successful constructive acceleration claim.

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