Concurrent Delay in the Complex World of Construction Projects

Zack Kilgore and Muhammad Khedr | GAR

In summary

This article addresses key considerations to be taken when trying to identify and evaluate concurrent delay on construction projects.

Discussion points

  • What is concurrent delay?
  • Is there consensus on concurrent delay in law or industry standards?
  • What considerations need to be taken when identifying and evaluating concurrent delay?

Referenced in this article 

  • George Sollitt Construction Co v United States
  • Schindler Elevator Corporation v Walsh Construction Company of Canada
  • Brazilian Civil Code
  • The International Comparative Legal Guide to: Construction & Engineering Law 2021–2022
  • Advancement of Cost Engineering International Recommended Practice
  • Morganti Nat, Inc v United States 
  • Utley-James, Inc v United States
  • Appeal of MCI Constructors, Inc

Considerations for dealing with concurrent delays

Introduction

Construction projects notoriously suffer delays. Anyone who has worked on a construction project of any magnitude, whether it is a home kitchen renovation or multinational pipeline, has likely contended with some form of project delay.

But determining what caused the delay is not always as easy as it may seem. Given that construction projects can be complex, with multiple work scopes being performed simultaneously, two or more delay events can occur in parallel or overlap. However, just because two delay events coincide does not necessarily mean they should be considered concurrent delays.

Determining concurrency in construction projects requires a nuanced approach that considers multiple factors impacting the project. Understanding how these factors interact is crucial, as it can significantly impact how project delays are addressed and who bears the financial burden. 

This article delves into the complexities of concurrent delays, how they are viewed in the courts and according to industry standards, and the considerations to assess when trying to identify and evaluate concurrent delays. 

So, grab your metaphorical hard hat, and let’s explore the complex world of concurrent delays in construction projects.

Defining concurrent delay

Concurrent delay is generally understood to exist when two or more delays (caused by different parties) both impact the project schedule, and both equally impact the completion of the project. 

Despite this seemingly simple definition, there are many scenarios in which concurrent delay could be considered. Here are some scenarios of construction delays in which an evaluation of potential concurrent delays would be warranted. For simplicity, nicknames have been given for each scenario:

  • ‘Clash at the start’: imagine a high-rise office building project. The contractor is all set to begin excavation, but a critical permit relating to historical preservation unexpectedly gets delayed by the city. While waiting for the permit, unforeseen hazardous materials are discovered during a routine soil test. The contractor cannot proceed until the materials are safely removed, also delaying the project.
  • ‘Domino effect’: a major highway construction project is under way in Canada. The owner unexpectedly changes the design specifications for the bridge component mid-construction, requiring significant rework. This pushes the work into the winter period. While the contractor scrambles to adjust to the design change, heavy winter storms hit the region, halting all construction activity for several weeks.
  • ‘Uneven delays’: a hospital renovation project is under way. The owner delays the delivery of crucial medical equipment needed for a specific wing. The contractor can continue work on other areas of the hospital but is forced to wait for the equipment before completing the specific wing. Meanwhile, the contractor experiences minor delays completing work in the other areas due to subcontractor scheduling issues.
  • ‘Owner’s fault, then contractor’s’: a large shopping mall project is nearing completion. The owner decides on some last-minute aesthetic changes to the façade, requiring additional work from the contractor. While the contractor is implementing these changes, they discover faulty materials in a crucial building component that needs to be replaced, causing a further delay.

These are just a few scenarios, and the specifics of concurrent delay situations can be highly varied. The commonality of the scenarios above is that owner-caused, contractor-caused and third-party delays can occur simultaneously, making it crucial to carefully analyse the unique circumstances and the impact of each delay on the overall project timeline.

The way courts and legal systems treat concurrent delays differs greatly depending on the project’s location. Even within common law jurisdictions, a lack of consensus can create confusion. For example, in George Sollitt Construction Co v United States, the court stated: ‘The exact definition of concurrent delay is not readily apparent from its use in contract law, although it is a term which has both temporal and causation aspects.’[1]

This highlights the absence of clear legal definitions surrounding concurrent delays.

Canada, another common law jurisdiction, offers a broader perspective in Schindler Elevator Corporation v Walsh Construction Company (WBP) of Canada:

It is not necessary for the independent causes of delay to occur exactly at the same time for them to be considered concurrent. Indeed, it is rare that concurrent delays start and end at the same time. Concurrent delays are more commonly experienced as overlapping events.[2]

This ruling recognises that concurrent delays can encompass overlapping events, not just strictly simultaneous occurrences. The ‘domino effect’ and ‘owner’s fault, then contractor’s’ scenarios are examples of impacts not strictly occurring simultaneously. 

Yet, when looking beyond common law jurisdictions to civil law jurisdictions, things only get murkier. In Brazil, the courts have not established a position on concurrent delay, but rather focus on ‘concurrent fault’, which is described as the following:

If the victim has concurred with the fault to the event causing the damage, its indemnification will be determined taking into account the extent of its fault compared to the fault of the person causing the damage.[3]

In Peru, the type of project (public versus private) dictates how the dispute is dealt with. Generally, the law for public projects in Peru does not address concurrent delay while disputes on private projects consider foreign case law.[4] Then there is Mexico, where the law is silent on concurrent delay.[5]

Similar inconsistencies exist in industry standards. These standards, such as the American Society of Civil Engineers (ASCE), the Society of Construction Law (SCL) and the Association for the Advancement of Cost Engineering International (AACEi), also do not provide a uniform definition for concurrent delay. While all three organisations acknowledge the existence of concurrent delay scenarios where both owner and contractor actions or inactions contribute to project delays, they differ on the level of detail in their definition of concurrent delay. The following is a summary of how these standards discuss concurrent delay:

  • ASCE: in general terms, concurrent delay can be described as a situation where two or more critical delays are occurring at the same time during all or a portion of the delay time frame in which the delays are occurring. Concurrent delays do not need to have the same start or finish dates.[6]
  • SCL:
    • True concurrent delay is the occurrence of two or more delay events at the same time – one an employer risk event, the other a contractor risk event – the effects of which are felt at the same time. True concurrent delay will be a rare occurrence.
    • In contrast, a more common use of the term ‘concurrent delay’ concerns the situation where two or more delay events arise at different times, but the effects of them are felt at the same time.[7]
  • AACEi: provides five definitions that dive deeper into the technical aspects of concurrent delay. AACEi emphasises the challenge of isolating and quantifying the specific impact of each delay on the overall project timeline.[8]

While ASCE, SCL and AACEi all acknowledge the existence of concurrent delays, generally their definitions reflect their distinct areas of focus within the construction industry. ASCE highlights the proximity of the delay events and practical project management concerns. SCL emphasises the effect of the delay events and the legal and contractual ramifications. AACEi delves into the technical challenges of analysing and quantifying the impact of each delay event separately, which might not be possible in some cases.

Given the lack of consensus in the relevant case law and industry standards, proving concurrent delay in construction projects can be challenging. And when evaluating concurrent delay, there are several factors that often come into play. The following sections explore key considerations for identifying and evaluating concurrent delay.

Primacy of delay 

As discussed above, concurrent delay is generally considered when multiple delays occur simultaneously and impact the project schedule. The first intricacy of evaluating concurrent delay relates to the primacy of delay concept. This principle focuses solely on delays affecting the project’s critical path – the longest sequence of activities that must be completed on time for the project to finish on schedule. Delays to non-critical path activities, on the other hand, have some wiggle room – a buffer known as ‘float’. This float allows non-critical tasks to be delayed to a certain extent without impacting the overall project timeline.

Here’s where things get interesting, as the primacy of delay concept can introduce confusion. The principle generally states that in a situation of multiple overlapping delays, the delay that occurred first is the primary and sole driver of the project critical path and creates float to the other paths of work.

Let’s consider the ‘owner’s fault, then contractor’s’ scenario discussed above. The owner might argue its last-minute façade changes did not truly delay the project because it had float compared with the contractor’s faulty materials issue. As the faulty materials were installed first, the owner might claim the delay is secondary and did not impact the schedule.

Further, when considering the ‘uneven delays’ scenario above, the contractor could assert that its delay was secondary because the owner’s delay happened first chronologically. As the owner’s delay occurred first, its own subcontractor scheduling issue is secondary.

So how would the contractor contend with the owner’s primacy of delay argument? Or how would the owner deal with the contractor’s chronological argument? A ‘but-for’ analysis is one possible approach. Here, one party needs to prove that, even without its delay, the other party’s actions would have still caused a critical path delay. This strengthens the argument that the project would have been delayed regardless of the first party’s issues.

A successful but-for argument can potentially lead to two key benefits:

  • Time extension: if the contractor can prove the owner’s delay was independent and critical, they may be entitled to a time extension on the project deadline, allowing them to catch up without incurring liquidated damages (fines for exceeding the original schedule). This is evident in Morganti National, Inc v United States, where a period of delay is attributed ‘to the actions of both the Government and the contractor, there are said to be concurrent delays, and the result is an excusable but not a compensable delay’.[9] Conversely, a successful counterargument by the owner can reduce or eliminate the contractor’s entitlement to a time extension.
  • Relief from liquidated damages: even without a time extension, a strong but-for argument can help the contractor avoid liquidated damages if it can establish that the owner’s delay was a significant contributing factor to the overall schedule overrun. As shown in Morganti National, Inc v United States, the court’s determination of an excusable concurrent delay for the contractor deemed the imposition of liquidated damages to be improper.[10]

Navigating concurrent delays and the primacy of delay concept can be complex. Clear, detailed and reasonable project schedules, meticulous record-keeping of the delay events and a thorough understanding of the but-for concept can help parties navigate these situations effectively and potentially recover time or avoid financial penalties.

Analysis approach: modelled versus fact-based 

So, what is the best method for identifying and evaluating concurrent delay beyond the but-for method? There’s no one-size-fits-all approach. Each project represents its own universe of contractual requirements, scale and complexity, unique facts, reporting and schedules. Selecting the most appropriate delay analysis methodology is often in the hands of the analyst and crucial for a successful evaluation of concurrent delay.

There are several methodologies that analysts often rely on. The SCL Protocol provides a description of six of the most common:[11]

  • Impacted as-planned analysis: this method introduces delay events into the original project schedule (baseline programme) to assess their impact on the projected completion date.
  • Time impact analysis: similar to the above, time impact analysis incorporates delay events into both the baseline and contemporaneous schedules (updated schedules reflecting project progress) to determine their effect on anticipated completion dates.
  • Time slice analysis: this method utilises both baseline and contemporaneous schedules, dividing them into time slices. By comparing these slices, the amount of delay within each period can be identified.
  • As-planned versus as-built windows: this approach breaks down the project duration into smaller time frames and uses common sense and available evidence to determine the actual critical path (the sequence of project activities with zero float, impacting the overall project duration).
  • Retrospective longest path: here, the as-built critical path is established by analysing the detailed final project schedule.
  • Collapsed as-built: this method extracts delay events from the final project schedule, attempting to reconstruct how the project would have progressed without those delays.

When selecting an analysis method, it’s important to note the distinction between modelled and fact-based delay analysis techniques. 

Modelled techniques, such as time impact or time slice analyses, rely on scheduling software to identify the critical path and quantify delay. Typically, these methods can be useful in identifying potential delays and their impacts. In modelled techniques that rely on contemporaneous schedules, it is important to consider the accuracy and validity of schedule updates used in the analysis. Forecasts within these schedules are subject to the scheduler’s judgement and might not accurately reflect the actual critical path. Similarly, these methods can be susceptible to manipulation as they heavily depend on the analyst’s programming decisions. A modelled analysis might erroneously show concurrency that did not exist or miss concurrency present in the actual project execution. To mitigate this risk, a detailed explanation of the analyst’s choices and assumptions used in the model is essential when presenting the findings.

Fact-based techniques, such as the retrospective longest path or as-planned versus as-built windows analysis, offer the advantage of drawing conclusions based on documented project execution (as-built records). This, combined with a proper causation analysis, can be a powerful tool for establishing the existence of concurrency. However, to properly execute these methods, reliable and comprehensive record-keeping over the course of the project is required. 

By understanding the available delay analysis methodologies, their strengths and limitations, and the importance of accurate project records, construction professionals are better equipped to isolate and evaluate concurrent delays.

Pacing

Another concept relating to concurrent delay disputes is pacing. But what is pacing? Let’s imagine a construction project as a meticulously planned race. Each crew member, like a baton-wielding runner, tackles their assigned task, passing the metaphorical baton (completed work) to the next team. Now, picture a wrench thrown into the works – a delay caused by the owner, perhaps a missing permit holding up the foundation. This disrupts the entire race, pushing back the finish line.

The contractor, facing this unexpected hurdle, has a decision to make. It could push its team to sprint and catch up, potentially burning out workers and incurring significant overtime costs. But there is another option: pacing.

Pacing is a strategic approach where the contractor intentionally slows down work on non-critical tasks. Think of it like the runner adjusting their pace during a marathon, conserving energy for the final push. By utilising the float created by the owner’s delay (tasks with some wiggle room in the schedule), the contractor can avoid the pitfalls of a frantic push. This can translate to significant cost savings and a more efficient project flow.

However, pacing is a tightrope walk. To successfully claim pacing as a legitimate reason for an extended timeline, the contractor has a heavy burden of proof to support an often internal and uncommunicated decision. The contractor’s performance would have to be the picture of punctuality, demonstrating that the owner’s delay truly disrupted the critical path and was not caused by any issues on the contractor’s side. Additionally, the contractor must prove that pacing was a reasonable response, not just an excuse to slack off or save money.

This is where meticulous record-keeping and reporting becomes the contractor’s best friend. Clear documentation, from emails and reports to schedule updates, is helpful to support the pacing claim. Pacing arguments have been successful in past court cases. In Utley-James, Inc v United States, the court found the following: ‘Where the government causes delays to the critical path, it is permissible for the contractor to relax its performance of the work to the extent that it does not impact project completion.’[12]

Similarly, the court found in the appeal of MCI Constructors that in a case where there is an owner impact, the contractor has the right to relax or slow down its performance if it does not extend the project completion.[13] Past court cases like these serve as testaments to the power of strong evidence, highlighting instances where contractors successfully argued pacing due to owner-caused delays.

From the owner’s perspective, the concept of pacing can be a source of scepticism as owners are naturally hesitant to foot the bill for delays they did not cause. A pacing argument will lead to scrutiny, and any evidence of concurrent delays could compromise a pacing claim. This is why clear communication is paramount. Openly discussing potential pacing situations between the parties fosters trust and avoids misunderstandings later. Additionally, prompt written notification of any pacing decision can help protect both parties.

Parties can set themselves up for success with a pacing claim by producing meticulous documentation. This includes a detailed cost analysis and schedule updates that clearly justify the pacing strategy. Daily reports and meeting minutes can further strengthen the contractor’s case by demonstrating the owner’s delay and the subsequent pacing decision. Importantly, acknowledging and addressing any contractor-caused delays prevents them from weakening the entire pacing argument.

Finally, formalising any agreements with the owner through the contract change order process is vital. This ensures everyone is on the same page and minimises the risk of future disputes.

Pacing is a complex but potentially valuable tool in a contractor’s belt. By following these steps, prioritising good project management practices and maintaining clear communication with the owner, contractors can increase their chances of successfully navigating the tricky terrain of pacing delay claims. Remember, with careful planning and meticulous documentation, pacing can transform a potentially costly delay into a strategic victory, ensuring a smooth and successful project completion.

Force majeure 

Now imagine you’re a contractor bidding on a construction project. While you can plan for many things, there are some unexpected events that can throw a wrench in your schedule. Force majeure events can include things such as natural disasters, pandemics, wars, strikes or even changes in government regulations. For an impact to be considered a force majeure event, it must generally cross the following thresholds:

  • delay events must be unforeseeable at the time of the bid submission –force majeure cannot be claimed if common weather phenomena were not accounted for in a bid timeline;
  • delay events must be outside the control of all involved parties; and
  • there was no way to prevent the delay event from happening.

Let’s say a force majeure event disrupts a construction project, but there are also other delays caused by one of the parties. Absent contract language or other binding agreements specific to force majeure, handling force majeure delay events in a concurrent delay environment can be tricky. However, there is industry guidance. For example, the AACE recommends the following:[14]

  • If the delays are caused by both a force majeure event and the contractor, the contractor is allowed an extension of time without compensation.
  • Similarly, if the delays are cause by both a force majeure event and the owner, the contractor is allowed an extension of time but not compensation.

The key takeaway here is that force majeure events can be considered an excuse for delays, if they meet the criteria set out above. This means a contractor would not be unfairly penalised for things outside its control. Force majeure events can provide some relief from delays, but it is important to understand the specific terms of the project contract and how these situations are addressed.

Conclusion

Construction projects are notorious for delays and can be a tangled web of unforeseen circumstances and scheduling hurdles. Often it is required to consider if the delays experienced on a construction project are concurrent. Evaluating the extent of concurrent delays further complicates this already challenging landscape.

As discussed, there is no discrete formula for identifying or evaluating concurrent delays. Legal considerations, the lack of consensus and the varying approaches of industry standards can make the analysis challenging. 

By proactively managing projects, meticulously documenting events and decisions, and fostering clear communication with all parties involved, construction professionals can effectively address concurrent delays and ensure a fair outcome for their projects. Remember, with a comprehensive understanding of this complex issue and the application of the most appropriate tools and methodologies, the challenges of identifying and evaluating concurrent delays can be transformed into an opportunity for project or dispute success.

Endnotes

[1] George Sollitt Construction Co v United States, 64 Fed Cl 229, 239 (2005).

[2] Ontario Superior Court Schindler Elevator Corporation v Walsh Construction Company of Canada (2021 ONSC 283).

[3] https://cms.law/en/int/expert-guides/cms-expert-guide-to-concurrent-delay/brazil.

[4] Law No. 30225.

[5] International Comparative Legal Guides: Construction & Engineering Law 2022.

[6] Standard 67-17, Chapter 8.

[7] SCL Delay Protocol, 2nd Edition, paragraphs 10.3 and 10.4.

[8] AACE International Recommended Practice No. 29R-03, ‘Forensic Schedule Analysis’, page 102.

[9] Morganti Nat, Inc v US, 49 Fed. Cl. 110 (2001).

[10] Morganti Nat, Inc v US, 49 Fed. Cl. 110 (2001).

[11] SCL Delay Protocol, 2nd Edition, paragraph 11.6.

[12] Utley-James, Inc v United States, 14 Cl. Ct. 804 (1988).

[13] Appeal of MCI Constructors, Inc, D.C.C.A.B. No. D-924, 1996 WL 331212 (D.C. C.A.B. 1996).

[14] AACE International Recommended Practice No. 29R-03, ‘Forensic Schedule Analysis’, Figure 15.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

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