Acceleration Pressure on a Commencement-Deadline Plaza
A university contracts a landscape architecture firm for a 1.1-acre plaza between two residence halls, with substantial completion required 30 days before May commencement. The contractor is CM-at-risk. In the first six weeks the contractor submits 34 RFIs and 61 shop drawings. The contract allows the landscape architect 7 calendar days for shop drawing review; the contractor's log shows an average turnaround of 11 days, and two canopy steel submittals sat out for 16 and 19 days because the structural subconsultant was slow. The baseline schedule carried three weeks of total float on the canopy chain, which is now at zero. Paving and planting remain. The university's project manager emails: 'We need you to push the contractor to add a second shift; the chancellor will not accept a delay.' The contractor has not submitted a time impact analysis and has made no written request for a time extension.
1. The university demands that the firm 'push the contractor to add a second shift.' What are the firm's obligations and risks, and how should it respond?
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The chancellor's deadline is not the landscape architect's to enforce. Under CM-at-risk, the owner holds the construction contract; the landscape architect administers the design contract and reviews submittals. Instructing the contractor to add a shift reaches into means and methods and, more importantly, into the owner's money.
Risks of complying informally: if a compensable delay already exists - and the two canopy submittals that sat 16 and 19 days suggest part of the problem sits on the design side of the table - the contractor is entitled to a time extension. An owner who refuses the extension and instead demands the original date has, in effect, directed acceleration, and the contractor can claim the premium: overtime, second shift, lost productivity, winter protection. That is constructive acceleration. An email from the landscape architect saying 'add a shift' is exactly the written directive that proves it.
The correct response: reply in writing that the firm will not direct the contractor's means and methods, will evaluate any extension request against an actual time impact analysis, and will help the university price an owner-directed acceleration change order if the university chooses to buy time. Frame it as a priced choice, not a refusal. Copy the owner's PM and the contractor. Never send the instruction and sort out the money afterward.
2. How should the firm manage its own review turnaround and the structural subconsultant's performance to limit its exposure?
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Two exposures: the firm's own review times and the subconsultant's.
On submittals: the contract allows 7 days and the log shows 11 average. Some of that is contractor resubmittal, but assume the reviewer will be blamed. Publish a weekly submittal and RFI log to the whole team with dates in and out, so delay is attributed rather than assumed. Triage - structural and long-lead shop drawings get parallel review the day they arrive, finishes wait for the weekly cycle. Staff a dedicated reviewer for the canopy package instead of routing it through the project manager. Return incomplete submittals marked 'not reviewed - resubmit' within two days rather than holding them while someone chases missing information.
On the subconsultant: send a written performance notice citing the agreement's schedule obligations and the specific late submittals, require a recovery plan with dates, and staff the work at the subconsultant's cost if it repeats. Check whether the subconsultant agreement allows back-charging before threatening it.
On schedule: do not accept the contractor's schedule as fact. Require a time impact analysis for each event; without one, neither an extension nor an acceleration claim can be evaluated. Keep a parallel record of when information was needed versus when it was requested.
None of this recovers the float. It protects the firm when the delay claim lands.
3. What must a constructive acceleration claim establish, and what should the firm recommend to the university now?
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A constructive acceleration claim generally needs five elements: an excusable delay not caused by the contractor; timely notice of that delay; a request for time extension; the owner's failure to grant it within a reasonable time coupled with a directive to finish on the original date; and actual added cost. Each is provable from documents.
Here elements one and two are partly live, because the design team's 16- and 19-day turnarounds are the owner's side of the table. The missing piece for the contractor is a written directive to accelerate. If the university repeats the demand in writing and the contractor complies, that piece appears.
So convert the demand into a decision. Give the university two priced options within five business days: grant a time extension and renegotiate the commencement use agreement, or issue a formal acceleration directive with a not-to-exceed change order funded from owner contingency, with the contractor submitting an acceleration cost breakdown first. Warn that the second option rarely costs what the owner expects and that public institutions often cannot move funds quickly.
Meanwhile instruct the contractor in writing to maintain the baseline schedule, continue work, and submit a time impact analysis within 14 days. Get the schedule updated.