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Whether an acceleration claim should be regarded as a VO claim under Section 14 of AB 92 or an EOT claim under Section 27 of AB 92 is, as stated above, not a question that traditionally gives rise to problems in practice as the distinction generally has no bearing on whether a contractor can succeed in his acceleration claim. The following review will therefore look at the circumstances that speak for and against an acceleration claim being treated as a VO claim or an EOT claim.

In sub-section 18.1, we firstly review circumstances that speak for and against acceleration claims being VO claims. In sub-section 18.2, we then review circumstances that speak for and against acceleration claims being regarded as EOT claims. In sub-section 18.3, we look at whether the classification of acceleration claims as VO claims or EOT claims is affected by whether acceleration takes place with or without an agreement. 

18.1. For and against acceleration claims as VO claims

In the assessment of whether acceleration constitutes a VO claim, it is appropriate initially to examine whether acceleration falls within the definition of additional works. In the AB 92 report, additional works are defined as follows:

“Additional works are works that are not included in the construction contract originally entered into. Additional works may include works that the contractor is under obligation to perform according to AB and works that he is not under obligation to perform.”

According to this definition, the concept of acceleration immediately falls within the concept of ‘additional works’ as acceleration means works that did not form part of the construction contract that was originally entered into. In the literature and arbitration case law, acceleration costs are referred to as being VO claims. Christian Skovsgaard writes in Entreprenørens Ekstraarbejder that ”the contractor is paid for acceleration as additional works”, while the Arbitration Court in its reasons given in TBB 2013.751 states that the complainant sent “a letter to the respondent with a statement of a number of VO claims, including extended site operation and acceleration.”

It follows from Section 14 of AB 92 that the developer may require that changes be made to the nature and extent of the works where such changes are naturally linked to the agreed services. The contractor is usually entitled to perform such changes. On the one hand, it may be claimed that the developer’s request to the contractor constitutes a ‘change to the works’ under Section 14 of AB 92 as the contractor has to restructure his work and perform the works at an earlier date than was otherwise planned. On the other hand, it can be cited that the developer, when requesting acceleration, does not change the works that are to be performed, but only the time at which the works are to be performed. 

According to Torsten Iversen, Erik Hørlyck and Christian Skovsgaard, Section 14 of AB 92 does not allow the developer to require that the contractor accelerate the works. Christian Johansen, on the contrary, states that the provision in certain cases requires the contractor to accelerate, but we do not agree with this view. In its wording alone, the provision solely allows the developer to “require changes to the nature and scope of the works”, while the time of the performance of the work linguistically falls outside this definition as acceleration changes neither the nature nor scope of the works. This is consistent with the fact that the planning of the works in Danish contract law is a matter for the contractor. The latter therefore speaks for the fact that acceleration claims are not VO claims under Section 14 of AB 92.

18.2. For and against acceleration claims as EOT claims

It can correspondingly be examined whether an acceleration claim constitutes an EOT claim under Section 27 of AB 92 under which the contractor is entitled to compensation for losses suffered because of delays caused by 1) circumstances attributable to the developer, and errors or negligence on the part of the developer, or 2) delays on the part of another contractor or party to the contract that may incur liability. Linguistically, it is natural to regard acceleration as an EOT claim as acceleration often becomes applicable in order to avoid or minimize an imminent delay irrespective of whether the delay is caused by the contractor, developer or other contractor. There may, however, also be cases in which the requirement for acceleration does not relate to impending delay. For example, one might imagine a scenario in which changed circumstances for the developer mean that the developer has an interest in taking a building into use prior to the handover date and is therefore willing to pay the contractor to accelerate in order to achieve this. In such cases, it is not natural to regard the contractor’s claim for payment as an EOT claim. 

In Entreprise, Hørlyck describes the unnoticeable transition between acceleration and the developer’s liability for delay under Section 27 of AB:

“At least if the contractor’s acceleration claim remains within the liability for compensation that the developer otherwise would incur, an analogy from Section 27 seems to lead to the fact that the acceleration claim must be allowed.
In general, there is an unnoticeable transition in the developer’s liability for delay under Section 27 of AB. If poor coordination, many and late project changes and other circumstances attributable to the developer have resulted in increased costs for the contractor, claims for compensation will often be allowed, whether the relationship is described as acceleration or as client liability for delay under Section 27.” 

In his comments on the provision contained in AB 18 on acceleration in Section 41 – which is new in AB 18, but in accordance with practice hitherto – Hørlyck correspondingly states that there is an unnoticeable transition to Section 43 of AB 18 (corresponding to Section 27 of AB 92).

According to Hørlyck, it is therefore hardly crucial whether the contractor’s increased costs are made as an acceleration claim or an EOT claim in those cases where delay attributable to the developer has meant that the contractor has incurred acceleration costs. 

In TBB 2018.649, the Arbitration Court found that the main contractor (HE) was entitled to an extension of time of eleven weeks. As a result, HE was awarded DKK 900,000 for a number of issues related to the delay, including construction management, welfare facilities and scaffolding hire with reference to Section 27, sub-section 1, no. 1 of AB 92. Regarding acceleration – on which no agreement had been entered into – the Arbitration Court, however, states that “although HE is entitled to an extension of time, the Arbitration Court finds that acceleration has taken place in the interest of HE and that HE does not have a right to payment for acceleration.” The Arbitration Court therefore does not view the acceleration claim in the same way as the other EOT claims. It should, however, be noted that the Arbitration Court does not view the acceleration claim in the same way as the VO claims that HE had also raised.

In TBB 2002.329, the Arbitration Court, on the other hand, heard the acceleration claim with other EOT claims and awarded the main contractor a total discretionary amount of DKK 2,800,000 for claims relating to acceleration, increased construction site costs and increased construction management costs.

18.3. Acceleration – with or without agreement

In practice, a distinction is made between a situation in which the parties agree that the developer is to cover the contractor’s acceleration costs and a situation in which the contractor can claim his acceleration costs reimbursed despite the fact that the parties have not entered into any agreement on such reimbursement. Below, we therefore look at whether the categorisation of acceleration claims as VO claims or EOT claims is determined by whether acceleration is performed with or without agreement. 

In general, EOT claims under Section 27, sub-section 1 of AB 92 constitute a compensation claim as compensation is paid for the contractor’s losses as a result of delay attributable to the developer or another contractor. VO claims under Section 14 of AB 92, however, have the nature of a contractual service that the developer has to provide as a result of his changes to the nature or scope of the works. 

It is therefore obvious that acceleration by agreement constitutes a VO claim, as the acceleration will thus form part of a contractual service. At the same time, it is natural in cases in which the contractor can claim acceleration costs without an agreement that this is considered an EOT claim as the acceleration in these cases is provided as compensation for the costs that the acceleration has imposed on the contractor. 

Iversen states, however, that in cases in which no agreement on acceleration has been entered into, there is an option of regarding acceleration as additional works:

“The question is then under which circumstances it should be assumed that the contractor himself without an agreement can be successful in a claim for payment for acceleration. Such a claim can either be supported by a view that the acceleration gives rise to additional payment because it constitutes additional works or a view that the costs of the acceleration can be claimed in compensation or as reimbursement by BH supported by the principles contained in Section 27 of AB 92. Usually, E will be interested in making a payment claim (which includes profits) rather than a claim for compensation or reimbursement for costs incurred.”

If no agreement has been entered into on acceleration, it may still be possible, depending on the circumstances, for the developer to pay the contractor’s acceleration costs in cases where the developer unjustifiably refuses the contractor an extension of time or refuses to address this. As the reason for this, Iversen states:

“The reason may – as is the case for additional works – be sought either from an extended agreement perspective or an extended negotiorum gestio perspective”. 

Negotiorum gestio, a form of spontaneous voluntary agency, covers the situation in which a person safeguards the property interests of a third party without any agreement having been entered into between the parties. Third parties may, as the case may be, be required to pay the costs of the spontaneous voluntary agency, and, according to Iversen, in certain cases this also applies to acceleration costs.

In summary, it must therefore be assumed that acceleration claims – irrespective of whether an agreement on acceleration has been entered into or not – is based on an (extended) agreement perspective and not a compensation perspective. This speaks for the fact that acceleration claims should be regarded as VO claims which, as opposed to EOT claims, are likewise based on an agreement perspective.