stages at the Agency's urging. On Sept. 21, 2005, excavation work on the critical path resumed.
After completing the project, Fluor made a claim for
$38,026,410 plus interest for differing site conditions,
failure to disclose superior knowledge, breach of the duty
of good faith and fair dealing and constructive acceleration.
The Board denied Fluor's claims for differing site conditions, failure to disclose superior knowledge and breach of
the duty of good faith and fair dealing but found Fluor was
entitled to excusable delays due to government acts. This resulted in a valid claim for constructive acceleration.
Fluor claimed 111 days of excusable delays relating to
the security situation (this roughly coincided with Fluor's
departure from June 1 to Sept. 21) and 26 days relating to
alleged differing site conditions. In response, on June 29,
2007, the Contracting Officer granted 143 days of excusable delay. This additional time was granted only four days
before Fluor's initial contract completion date of July 3.
The Board determined Fluor was entitled to excusable
delays totaling 111 days, which was adequately compensated by the 143 additional days that were already
granted. Nonetheless, the Board found the Agency's late
recognition of excusable delay – only a few days before
the scheduled completion date while liquidated damages
loomed – caused Fluor to accelerate its performance.
After analyzing all the issues, the Board found 5 percent
of Fluor's acceleration costs arose from excusable delays,
and therefore, awarded Fluor $1,253,710 plus interest for
man camp costs; craft labor and small tool costs; additional equipment, fuel, oil and grease costs; staff labor costs;
local labor lunches caused by acceleration; overtime due to
acceleration; general and administrative costs; and profit.
The Fluor matter highlights the importance of carefully
tracking and documenting the project schedule and all
relevant delays and costs, as a finding of excusable delay is
the first step in proving a constructive acceleration claim.
Here, although the parties entered a firm, fixed-price,
design-build contract – which the government argued
was the end of the story – Fluor was able to recover for
constructive acceleration based on the contract, actions by
the government and its detailed tracking of the schedule,
excusable delays and acceleration costs. v
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Better Roads 6/26/13 8:57 AM
September 2013 19
8/28/13 2:10 PM