Government Contracting Database

The most recent ASBCA case covering the topic of constructive acceleration cites five elements that must be proven to satisfy a claim of constructive acceleration. Those elements are:

(1) [T]hat 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.

Appeals of — Iap Worldwide Servs., Inc. , ASBCA No. 59397, 17 – 1 BCA ¶ 36763 (citing Fraser Constr. Co. v. United States , 384 F.3d 1354, 1360 (Fed. Cir. 2004)). Numerous courts have cited to these elements since the 2004 Fraser opinion as an accurate method of proving constructive acceleration. See Garco Constr., Inc. v. Sec’y of Army , 856 F.3d 938, 945 – 46 (Fed. Cir. 2017), cert. denied sub nom. Garco Const., Inc. v. Speer , 138 S. Ct. 1052, 200 L. Ed. 2d 495 (2018); Zafer Taahhut Insaat v. Ticaret A.S. , 833 F.3d 1356, 1362 (Fed. Cir. 2016); Appeal of — Alderman Bldg. Co., Inc. , ASBCA No. 58082, 13 BCA ¶ 35381; Ecc Int’l , ASBCA No. 55781, 13 BCA ¶ 35207; Armour of Am. v. United States , 96 Fed. Cl. 726, 757 (2010); Appeal of Aei Pac., Inc. , ASBCA No. 53806, 08 – 1 BCA ¶ 33792; and Appeal of Curry Contracting Co., Inc. , ASBCA No. 53716, 06 – 1 BCA ¶ 33242.

According to Bramble and Callahan, the fourth element from Fraser is sometimes broken in half where the contractor’s notification to the government that it regards the order as a constructive change in the contract is its own element. Bramble & Callahan, Construction Delay Claims § 6.05, 6 – 24 (2018). It is also pointed out that many courts only discuss the elements that directly relate to the controversy. Id. at 6 – 27.

As for element 2 and 3, a clear request for a specific amount of time extension has been required by the court. See Zafer Taahhut Insaat v. Ticaret A.S., 833 F.3d 1356, 1362 (Fed. Cir. 2016) (where the contractor requested unspecified time extensions and monies and failed to provide a specific time frame when asked by the government, the contractor has not satisfied element 2 or 3).

Updated: July 30, 2018