Concurrent Delay

• Published date: 23 December 2021
• Subject Matter: Corporate/Commercial Law, Real Estate and Construction, Contracts and Commercial Law, Construction & Planning
• Law Firm: MMA Law
• Author: MMA Law

A concurrent delay occurs when independent delays overlap, each affecting the schedule and completion date of a construction project. Depending on project scale and complexity, two or more concurrent delays can act at the same time. True concurrency means the delay events of the client and the contractor both start and finish at the same time. However, true concurrency is very unlikely to occur. Reality shows that delays need only to overlap for a given period of time to qualify as concurring delays.

The most relevant aspect of concurrent delays is that courts, boards of contract appeals, arbitration panels, and experts, are inconsistent in defining and assessing concurrent delays. That is a direct consequence of contracts failing to include terms for matters of concurrency or doing it in an ambiguous way. Concurrent delays represent unique situations in which establishing liability is not a straightforward process. Although the consequences overlap, the causes are usually traced at various dates back in time. This leads to the difficult task of establishing the presence or absence of correlation. The most common bias here is to assume that if one event came after another, it must have been influenced by it.

While normal delays generate well-known contractual consequences, supported by either the client or the contactor, concurring delays leave many ends that are open to interpretation. Owners use concurrent delays to avoid being billed for extended overhead, change orders and other claims. On the other side, contractors invoke concurrent delays to escape paying liquidated damages and to recover extra costs associated with delays. A common example occurs when the contractor is already behind schedule by its own fault and the client triggers a second delay-producing event. Concurrent delays also take place when a delay caused by one party overlaps with an abnormal neutral event (extreme weather, social or political disturbance) causing an excusable event.

Judging concurring delays is complicated and verdicts are often unpredictable. An investigation is launched to establish culpability, with the first focus on confirming that the delays are indeed independent of each other. That is usually done through an analysis that proves the impact on the critical path of one delay persists when all the other concurrent delays are neglected. Another condition for concurrency as defined in AACE...