ABSTRACT
“Constructive” refers to something that is inferred or implied and in construction projects it is usually inferred from an implied instruction by the Employer or its representative. Normally the obligation to accelerate often arises from an express power bestowed upon the developer by provisions in the contract. Constructive acceleration generally can be found in construction projects where the contractor is affected in its progress by “excusable” delay, i.e. delay not caused by the contractor, and this is generally given to mean design changes, added scope, unusually severe weather, differing site conditions, acts of God or employer-caused delays. More importantly in terms of acceleration as a mitigation factor, the court was quite clear that when delay arises, some employers and their consultants think that contractors are under a duty to mitigate delays, whether excusable or not.
