Constructive acceleration and cost

Abstract

The legal doctrine of constructive acceleration has developed into a relatively common claim on construction projects in the United States. The position there is that if an employer causes delay but refuses to grant an extension of time for it, and the contractor accelerates to win back the lost time, the refusal of the employer or his certifier is treated as a constructive instruction to accelerate, for which the contractor is entitled to compensation under the contract. English law, for that matter by inference in this regard Malaysian law, does not seem to implicitly accept this concept of constructive acceleration. It remains to be said that even if „loss and expense? or „costs? of constructive acceleration is claimable, this is strictly beyond the jurisdiction of the contract administrator and the same can only be pursued in arbitration or litigation. The essence of the problem is the exact nature of „temporary default?, when the contractor is not clear whether he is entitled to an extension of time and may appear to be in breach of contract pending the final determination of extension of time while left with the same choice, whether or not to accelerate. This dissertation is aimed at determining the contractor’s entitlement to claim for cost of acceleration especially in the case of constructive acceleration. Given the legalistic nature of this dissertation, the approach adopted in this research is mainly case law based. Through the analysis of courts judgments, the meaning and effects of acceleration can be determined while contractor’s obligation, acceleration claims and acceleration agreement can be identified and ascertained.