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requiring “each party to a contract to take
action to decrease, lessen or minimize
damages (time and money) to the other
party.” The SCL International (Society of
Construction Law International) limits
the duty of the contractor to mitigate to
the following:
“Subject to express contract wording or
agreement to the contrary, the duty to
mitigate does not extend to requiring the
Contractor to add extra resources or to
work outside its planned working hours.”
This is because the claimant is generally not allowed to recover damages that
could have reasonably been avoided.
For directed and constructive acceleration, the costs of acceleration should
be paid for by the party responsible for
the delays that required the acceleration,
or by the party that requested or planned
the acceleration in the absence of delays.
According to both the AACE and the ASCE
(American Society of Civil Engineers), if
the acceleration efforts were deployed
as planned and the costs were incurred,
these costs should be recoverable, regardless of whether the entirety of the planned
acceleration was achieved.
What do the courts say?
This may lead to:
In two hallmark court cases, namely
Schindler Elevator Corporation v. Walsh
Construction Company of Canada and
Walsh Construction v. Toronto Transit
Commission et al., the courts placed a
high importance on the ability of the
contractor to demonstrate the costs
incurred as a result of acceleration
measures implemented. If the party
seeking to recover costs cannot
satisfactorily demonstrate these costs,
as was the case in Schindler Elevator
Corporation v. Walsh Construction
Company of Canada, then these costs
may not be granted, irrespective of
entitlement.
The owner granting the time extension;
The owner telling the contractor to
accelerate; or
The owner denying the extension, forcing constructive acceleration.
In all cases, the contractor’s decision
to accelerate – and the associated costs
– should be clearly communicated to the
owner. If needed, the contractor should
reserve its rights to claim for additional
costs. Whether or not the parties agree
to the cost of acceleration in advance,
the contractor should maintain a clear
record of acceleration costs, such as
overtime, extra crews, weekend and
night shifts, etc., to support or defend
future claims.
What does this mean for you?
When a project experiences delay, regardless of the cause, the contractor has a
duty to mitigate the effects of the delay, if
it can do so without incurring significant
costs. Once the opportunities for mitigation have been exhausted, the contractor should contemplate next steps. The
contractor should notify the owner of the
delay and request an extension of time.
The views expressed herein are those of the author(s) and not necessarily the
views of FTI Consulting, Inc., its management, its subsidiaries, its affiliates or its
other professionals.
FTI Consulting, Inc., including its subsidiaries and affiliates, is a consulting firm
and is not a certified public accounting firm or a law firm.
FTI Consulting is an independent global business advisory firm dedicated to
helping organizations manage change, mitigate risk and resolve disputes:
financial, legal, operational, political and regulatory, reputational and
transactional. FTI Consulting professionals, located in all major business centers
throughout the world, work closely with clients to anticipate, illuminate and
overcome complex business challenges and opportunities. ©2025 FTI Consulting,
Inc. All rights reserved. fticonsulting.com
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