Concurrent delays
By Jad Chouman
When delays occur on a construction project, it is not uncommon for each party to attempt to use concurrent delays in defense against the opposing party’s delay damages: Employers often cite concurrent delays by the contractor as a reason for awarding an extension of time without compensation, whereas contractor’s claims usually ignore the concurrent delay from the claimed delays in order to claim full prolongation costs stemming from the employer delays and to prevent exposure to liquidated damages.

Providing a clear definition of concurrent delays and how they affect the contractor’s entitlement to additional costs along with guidelines to an independent delay analysis methodology may assist parties to settle disputes in relation to concurrent delays.

Concurrent delays are when two or more independent critical delays, one by the employer and one by the contractor, occur at about the same time period, each having the ability to delay the time for completion. The following key factors are vital for concurrent delays:
1. They should critically impact the time for completion, and not simply absorb float;
2. They should be independent and not caused indirectly by the other parties delay; and
3. They should occur approximately at the same time period and their impact should be concurrent but not necessary identical.

Accordingly, there are two possible scenarios when considering the impacts of concurrent delays:
1. Impacts to the same critical path, at least one of which is attributable to each party. For example, the commencement of works is delayed by the late completion of design, which under the contract is a contractor’s responsibility, and late access to site, which is the employer’s responsibility.
2. Impacts to more than one critical path, in which one path is affected by an employer delay, and the other being affected by a contractor delay.

A meaningful evaluation of concurrency and how it affects the contractor’s potential entitlements requires a totally independent and objective delay analysis approach.
For this, I recommend time impact analysis undertaken in short windows of time.

In this instance, Hill International has established, and effectively employed on a number of assignments, predefined steps which, in addition to providing total auditability, enhances the objectivity of the results, thereby assisting the parties in resolving disputes in relation to concurrent delays.

Following these steps systematically allows the identification of delay events, assessment of delay responsibility and determination of their impact within the defined windows of time, while taking into consideration any mitigation measures taken to reduce the delays. This approach depends on the availability of adequate programme updates and contemporaneous records.

Barring any contractual provision to the contrary, the contractor’s concurrent delay(s) should not impact its entitlement to an extension of time due to the actions of the employer. As for a contractor’s entitlement for compensation in case of concurrent delays, there are two possible scenarios:
1. If the effect of an employer delay on the completion date is longer than that of the contractor’s, then the contractor would potentially be entitled to recover damage for a period equivalent to the difference between the effects of the two delayed periods.
2. If the effect of the employer’s and contractor’s delay’s on the completion date are felt concurrently, the contractor may recover additional costs only if it was able to separate its incurred additional costs from those of the employer.

Construction Week

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