Proving Constructive Acceleration in Construction Disputes

Directed Acceleration: The employer explicitly instructs the contractor to speed up the work.

Constructive Acceleration: The employer does not issue direct instructions but creates a situation where the contractor has no choice but to accelerate, often due to delayed or denied EOT claims.

A primary cause is the employer’s “Wait and See” approach—delaying EOT decisions until actual delay impacts occur. This leaves contractors with no choice but to act preemptively to avoid liquidated damages.

A contractor must establish:

• An excusable delay occurred (outside their control).
• EOT was wrongfully denied or delayed by the employer.
• Implied or inferred pressure was applied to finish on time (e.g., threats of damages, denial of delay impacts).
• Actual acceleration efforts were implemented (e.g., increased labor, overtime).
• Causal link between the employer’s actions and the acceleration measures.

• Correspondence showing EOT requests and responses
• Meeting minutes or records referencing project milestones or penalties
• Documentation of additional labor, equipment, or schedule changes
• Cost records showing the financial impact of acceleration