"Constructive Acceleration – A Global Tour" by
- James G. Zack, Jr., CCM, CFCC, FAACEI, FRICS, PMP
Description:
1. Purpose – The purpose of the paper was to explore how contractors, who have been forced to accelerate their work due to an owner’s refusal to grant a time extension legitimately owed under the contract, can recover their damages in various jurisdictions around the globe.
2. Design / Methodology / Approach – I reviewed U.S. case law to ascertain the burden of proof a contractor has to meet in the U.S. in order to recover constructive accelerations damage. I reviewed a large amount of literature from non-U.S. jurisdictions to determine if constructive acceleration was a recognized claim and, if so, what is the contractor’s burden of proof to recover. I then sent out a survey to claim consultants I know personally asking whether the claim concept is recognized in their jurisdiction. If so, I inquired about the required burden of proof. If not, I asked what other legal mechanisms were available which would allow a contractor in this circumstance to recover damages. I was able to collect information on 20 countries outside the U.S. and summarize the situation in each relative to this sort of claim.
3. Findings & Value – Although courts in many countries outside the U.S. do not recognize constructive acceleration by that name, almost all countries provide legal means for contractors to recover under a variety of legal theories.
4. Research Limitations / Implications – The primary limitation to this research is that it covered only 20 countries. As each country has a different legal system (i.e., common law, civil law, traditional law, etc.) the information from these 20 countries may not be transferable to other countries. The implication is that a contractor caught in a constructive acceleration situation must confer with local legal counsel quickly to learn what they must do to reserve their rights to recover damages.
5. Practical Use / Implications – As the information was gathered from claim consultant practitioners in the various countries, often with the assistance of legal counsel, the paper attempts to provide a roadmap to recovering damages in this situation in each of the countries where data was located. The paper then is a “how to” manual of sorts for this type of claim in these countries.
6. Originality /Value – Despite the research, I know of no other paper like this one where a single claim is surveyed in a large number of countries to ascertain how contractors can recover damages resulting from a specific type of claim.
7. Conclusions – What the paper demonstrates is that contractors in constructive acceleration situations can almost always recover damages but will likely have to employ other legal theories than they are used to in the U.S.