Apr 08 2012
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The Saga of Concurrent Delay
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 the 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.
The Definition of Concurrent Delay
Concurrent delays are experienced when two or more independent critical delays, one caused by the Employer and one caused by the Contractor occur at approximate the same time period, each having the ability to delay the Time for Completion.
1. They should critically impact the Time for Completion, and not simply absorb float;Accordingly, there are two possible scenarios when considering the impacts of concurrent delays:
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.
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
1. the Contract is a Contractor responsibility and late access to site which is the Employer's responsibility.Evaluation/Identification of Concurrent Delays
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 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 mainly depends on the availability adequate programme updates and contemporaneous project records.
Effect of Concurrency on Entitlement to an Extension of Time
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
Effect of Concurrency on Entitlement to Compensation
As for Contractor's entitlement for compensation in case of concurrent delays, there are two possible scenarios:
1. If the effect of 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.Finally, the Employer would be entitled to apply liquidated damages if the effect of Contractor caused delay on the completion date is longer than that of the Employer's. The period to which the damages are applied should be equivalent to the difference between the effects of the two delays.
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.
Jad Chouman is associate director of Hill International, Claims Group. Hill International provides program management, project management, construction management and construction claims and consulting services.
Disclaimer: This article does not constitute advice, legal or otherwise, and is provided only as general commentary. Appropriate professional advice should always be obtained before taking or refraining from taking any action in relation to such information and/or the application of applicable law. This article and the materials contained in it are provided on the basis that all liability for any loss or damage, whether direct or indirect, arising out of or in connection with any use or reliance upon this article is excluded to the fullest extent permitted by law.
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