Anyone who has been involved in a major construction project will have come across the term “concurrent delay.”
Whilst it is widely used, it remains an ambiguous statement and one that is sometimes hotly debated during disputes.
At its simplest, concurrent delay arises where two or more separate delay events occur at the same time and both affect the project’s critical path.
However, whilst there is a simple definition the challenge comes from agreeing on how simultaneous the delays are and, as a result, how liability should be shared when both employer and contractor play a part in holding up progress.
To begin with we can look at how various bodies define this issue. The Association for the Advancement of Cost Engineering (AACE International) views concurrent delays as independent events occurring within the same period of time, even if they are not literally simultaneous, provided their effects overlap in delaying the works.
In comparison, the Society of Construction Law (SCL) describes a “true concurrent delay” as two or more delay events happening at once with their impact being felt on the critical path at the same time.
These are just two broad legal definitions, with additional case law muddying the waters further when it comes to dealing with the complexities of concurrent delays.
Managing concurrent delay in real projects is about more than just legal arguments, so here are some steps that you should consider:
- Clear contract drafting – Spell out how concurrent delays will be dealt with and avoid vague provisions. Currently, standard form construction contracts such as the JCT suite of contracts are silent on concurrent delay and so a schedule of amendments would be required to amend the standard wording to deal with concurrent delay events and how they are to be treated.
- Open dialogue – Be transparent with all parties to reduce the risk of disputes escalating.
- Robust records – Keep meticulous site diaries and retain correspondence to support or resist claims.
These are just a few methods of both preventing and also preparing yourself for the defence of a claim over concurrent delays.
Ultimately, concurrent delay continues to cause confusion because of the lack of a universally accepted definition and consistent legal treatment.
If you are facing a dispute or need advice on delay provisions in your contracts, it is important to seek tailored advice from experienced construction lawyers.