By: Michael H. Payne and Craig A. Schroeder
Acceleration is defined as a directive to increase efforts in order to complete performance on time, despite excusable delay. If the government does not agree that the contractor is entitled to acceleration costs, a contractor must file a request for an equitable adjustment (“REA”), or a claim under the Contract Disputes Act. Although different formulations have been used in setting forth the elements of constructive acceleration, the Court of Appeals for the Federal Circuit has generally described the requirements to include the following elements, each of which must be proved by the contractor: (1) that the contractor encountered a delay that is excusable under the contract; (2) that the contractor made a timely and sufficient request for an extension of the contract schedule; (3) that the government denied the contractor's request for an extension or failed to act on it within a reasonable time; (4) that the government insisted on completion of the contract within a period shorter than the period to which the contractor would be entitled by taking into account the period of excusable delay, after which the contractor notified the government that it regarded the alleged order to accelerate as a constructive change in the contract; and (5) that the contractor was required to expend extra resources to compensate for the lost time and remain on schedule. It is important to note that the contractor must prove that the costs claimed were actually incurred as a result of actions specifically taken to accelerate performance.
A contractor may accelerate on his own initiative to assure completion within the contract schedule or for other purposes. A contractor is, in fact, entitled to finish ahead of schedule, so long as he does not "tread upon the interests of others, or violate his contract." The contractor cannot compel the Government to aid him in finishing ahead of schedule, however, or to recover the costs of acceleration unless the Government has actually or constructively ordered the effort. No compensation is due where a contractor voluntarily accelerates performance for his own purposes.
Michael H. Payne is the Chairman of the firm's Federal Practice Group and may be contacted to discuss constructive acceleration or federal construction matters generally. Craig A. Schroeder is an Associate in the firm’s Federal Practice Group.