By Michael C. Loulakis and Ashley P. Cullinan
Most readers have heard the term “constructive acceleration” over the course of their careers. In the context of prime construction contracts, it refers to a contractor acceleration of the work when the project owner requires the contractor to meet the original completion deadline, even though the contractor has encountered an excusable delay. Acceleration efforts, such as using overtime and double shifts, are expensive, and a contractor will use constructive acceleration as the basis for its claim that the owner should bear the costs of acceleration.
There are numerous published decisions about the standards that need to be met for a contractor to prevail on a constructive acceleration claim. Without a doubt, the most essential element is that the contractor experienced a delay for which it was entitled to a time extension (i.e., an excusable delay) and that its acceleration was an attempt to overcome that delay. A recent decision from the U.S. Court of Appeals for the Federal Circuit, Amatea/Grimberg JV v. Secretary of the Navy, denied a contractor’s constructive acceleration claim on the grounds that the contractor failed to prove it encountered an excusable delay.
The case
At issue was a project for the Naval Surface Warfare Center in Indian Head, Maryland. The U.S. Navy awarded the design-build contract for the project to Amatea/Grimberg Joint Venture with a completion date of March 29, 2012. AGJV did not complete the project until six months later, on September 29. The Navy originally imposed liquidated damages for the entire six months at the contract’s daily rate of $5,250 but later released some of the liquidated damages (the decision does not explain how much was released or why the Navy released it).
AGJV ultimately asserted a claim for constructive acceleration on the grounds that the Navy demanded AGJV complete additional work on the project’s electronic security system and fire sprinklers without extending the performance period. This caused AGJV to accelerate its work by directing its subcontractors to work overtime and add resources, so as to minimize the Navy’s imposition of liquidated damages. The Navy’s contracting officer denied this claim.
Because AGJV was running behind schedule, it requested approval to work outside the contract’s regular work hours (i.e., Monday through Friday, 7:00 a.m. to 3:30 p.m.). The contract stated that the contracting officer “may approve work outside regular hours,” based on the justification provided by the contractor, according to court documents. AGJV requested to work every Saturday until the end of the job to make up for the lost time, but the Navy denied this request. It did, however, extend the Monday through Friday work hours to 6:30 a.m. to 6:30 p.m. and granted AGJV’s request to work on three Saturdays to resolve certain utility issues. AGJV argued that the contracting officer’s denial “breached the implied duty of good faith and fair dealing.” The Navy’s contracting officer denied this claim as well.
AGJV unsuccessfully appealed the contracting officer’s decisions to the Board of Contract Appeals, prompting AGJV to then appeal the board’s decision to the U.S Court of Appeals for the Federal Circuit. Because the appellate court found that the board properly applied the law and that the board’s findings were supported by substantial evidence, the court affirmed the board’s decision.
The ruling
The court’s decision first reviewed the elements needed for a contractor to successfully assert a constructive acceleration claim. Its decision focused only on the first element: whether AGJV had proven that it experienced an excusable delay. The court characterized this as a delay that results from “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.” The court further noted that the “unforeseeable cause must also affect the critical path of performance,” delaying contract completion, per the court decision.
The court concluded that the board’s determination that there was no excusable delay was supported by the evidence. The board found that the items cited by AGJV for delay (i.e., the electronic security system and fire sprinklers) were not the cause of the delay. To the contrary, what slowed project completion was other work, such as the roof, HVAC system, and windows. Even accounting for the time extension associated with the electronic security system, the board found that AGJV was nearly four weeks late to finish the project.
The court noted that the board was heavily influenced by AGJV’s failure to provide an expert’s critical path analysis. It found that:
(T)here has been zero evidence presented by AGJV that work on the (electronic security system) or the fire sprinklers caused a delay in the critical path to project completion and certainly nothing on the order of the amount of time that the Navy ultimately granted.
AGJV argued that the expert’s analysis provided by the Navy was “riddled with flaws,” but the court was unpersuaded. The court also cited AGJV’s failure to provide its own expert to contest the Navy’s expert’s critical path analysis.
AGJV argued to the court that because the Navy granted a time extension and released some of the liquidated damages, the Navy knew there was excusable delay and that this was sufficient to satisfy the excusable delay element needed for a constructive acceleration claim. The court rejected this argument, citing precedent that there is no “presumption that the government is at fault for delay when the contracting officer grants a time extension,” according to the court decision. Importantly, the court noted that when a claim goes to litigation, any findings of fact in a contracting officer’s final decision “are not binding upon the parties.”
The court was also unpersuaded by AGJV’s argument that the contracting officer breached the contract by failing to broadly expand working hours. The board found that the contracting officer reasonably exercised her discretion in denying AGJV’s requests for additional working time. She based her denial on the fact that expanded working hours would “(impose) significant costs upon the government,” per court documents. She also determined that this expanded time would not be “well-used,” given that when she visited the jobsite, no work was being done.
The court concurred, stating that, “agreeing with AGJV would essentially mean that a (contracting officer) could never exercise discretion with respect to work hours requests as long as the contractor says, ‘We’re behind.’” The court was also influenced by the fact that the contracting officer did in fact extend the hours during business days and allowed AGJV to work on three Saturdays.
The takeaways
It is difficult to comprehend why AGJV did not offer an expert to provide a critical path analysis to support its position. Apparently AGJV relied heavily on the fact that the contracting officer eventually provided a time extension and released some liquidated damages. However, as pointed out by the court, this is insufficient to prove a contractor’s claim once it goes to litigation.
Additionally, while AGJV might have been frustrated by not getting more working hours, it is commonly known that owners are unwilling to expand working hours — and particularly allow weekend work — without a very compelling reason. A contractor should never assume that its own delays can be made up by working “around the clock” and that an owner has to agree to support this.
Michael C. Loulakis is the president and CEO of Capital Project Strategies LLC in Reston, Virginia. Ashley P. Cullinan is an associate with Smith Currie Oles LLP in Tysons, Virginia.
This article first appeared in the November/December 2025 issue of Civil Engineering as “No Excusable Delay, No Constructive Acceleration.”
