Contractors know that time is money. So, the point is clear when expressly told to “Speed Up! Go Faster!”
But, what do you do when the Owner says, “You must still meet the deadline and I’m not giving you any more time.” Preserve and pursue a claim against the Owner for constructive acceleration.
Constructive acceleration occurs when the owner or government demands compliance with an original contract deadline, despite a delay. In such cases, the contractor may be entitled to reimbursement for expenses actually and reasonably incurred in complying with an (implied) acceleration order.
But, the Contractor must prove:
- Excusable Delay: a delay that is neither the fault of the owner or contractor;
- Request: The Contractor timely and sufficiently requested more time;
- Denial: Owner denied or failed to timely respond to Contractor’s request for more time;
- Demand: Owner demanded Contractor meet deadline;
- Timely Notice: Contractor timely notified Owner that Contractor understood the Owner’s demand as constructive acceleration; and
- Damages: Contractor incurred damages due to Owner’s unreasonable demand(s).
Trick or Treat in Government Contract Claims
Without a request for a contracting officer’s final decision, claimants may seek treats, but get tricked instead.
Owner Nonpayment is No Defense to Miller Act Claim
As if you needed confirmation that the Federal Miller Act is a powerful tool for unpaid subcontractors, this is it. Even when a Prime ordered and accepted the Sub’s work, but didn’t have to pay under the Subcontract, the Subcontractor still. . . .
Trust, but Verify
Rely at your own risk upon a Contracting Officer’s statements when statutes or contract provisions may conflict.
Payment for Verbal Changes When a Writing was “Required”
Even if your agreement can only be modified by a writing, you may still have a good argument to be paid for extra work.
Pirates and Arbitration
How does a pirate solve a dispute (besides walking the plank)?
Bases Covered?
Contractors, will your current insurance policy cover “your work” as a joint venture partner? The typical answer is NO.
Two Paths at the Same Time to the Same Place
“Two roads diverged in a wood, and . . .” the Prime Contractor had to take both roads at the same time to the same place.
Rules, Which Rules?
Good Idea: Include a choice of law clause in your contract to promote consistency and predictability (while reducing potential costs and risk).
Government Liability for Third-Party Delays
Generally, the Government is not responsible for delays caused by third parties, even other contractors at its own project site, unless the Government affirmatively indicates the site will be ready and available.
