concurrent delays - delayed road project under construction

Almost all construction projects experience delays of some kind. Whether they are caused by the owner, contractors, or events outside of everyone’s control, they have a significant impact on project completion and project costs. Determining the cause of and assessing liability for construction delays is tough enough when analyzing just one delay with one cause: When multiple delays are experienced at the same time, it can be difficult to determine who caused what and how much of a contract extension there should be. Such delays, called concurrent delays, often aren’t dealt with explicitly in contracts, so project teams have to work together to make the best decision for the project.

We’re going to look at what concurrent delays are, how they are assessed, when and how to make a claim for concurrent delay, and finally look at some sample delay contract clauses.

What is a concurrent delay?

Unfortunately, there’s no less than five definitions for a concurrent delay! We’ll start by giving you a basic one, then go into more detail. A concurrent delay is when two or more delays partially or wholly overlap. Concurrent delays aren’t as much of a problem if they are caused by the same party or are out of everyone’s control. Where they become muddy is when they are caused by different parties.

The AACE International Recommended Practice 10S-90 (RP 10S-90), a guide to cost engineering terminology commonly cited in delay claims, has five different definitions for concurrent delay: 

  1. Two or more delays that take place or overlap during the same period, either of which occurring alone would have affected the ultimate completion date. In practice, it can be difficult to apportion damages when the concurrent delays are due to the owner and contractor, respectively.
  2. Concurrent delays occur when there are two or more independent causes of delay during the same time period. The “same” time period from which concurrency is measured, however, is not always literally within the exact period of time. For delays to be considered concurrent, most courts do not require that the period of concurrent delay precisely match. The period of “concurrency” of the delays can be related by circumstances, even though the circumstances may not have occurred during exactly the same period of time. 
  3. 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 and the effects of which are felt at the same time. The term “concurrent delay” is often used to describe the situation where two or more delay events arise at different times, but the effects of them are felt (in whole or in part) at the same time. To avoid confusion, this is more correctly termed the “concurrent effect” of sequential delay events. 
  4. Concurrent delay occurs when both the owner and contractor delay the project or when either party delays the project during an excusable but non-compensable delay (e.g., abnormal weather). The delays need not occur simultaneously but can be on two parallel critical path chains. 
  5. The condition where another delay-activity independent of the subject delay is affecting the ultimate completion of the chain of activities.

Concurrent delay claims are important for contractors to understand because they may be used to defend against liquidated damages.

Liability and compensation for concurrent delays

Assessing liability in determining compensation for concurrent delays is complicated. Each delay must be analyzed on its own to determine the cause, who’s liable, and if compensation is warranted.

If the delays were caused by different parties, then the team must determine what to do next.

Excusable versus non-excusable delays

When assessing the potential for liability and compensation for a concurrent delay, teams must look at whether the delay was excusable (subject to schedule extension and compensation) or non-excusable.

An example of an excusable delay is when a delay falls under a force majeure clause — events such as natural disasters or terrorist attacks. Excusable delays can also result from errors or omissions in the plans or issues that were caused by the project owner.

Non-excusable delays are those where the contractor was entirely responsible for extending the project’s duration. Examples include delayed mobilization, late submissions, failure to obtain permitting (if they’re responsible for it), or general poor planning on behalf of the contractor.

Compensable versus non compensable delays

Compensable delays are those for which the contractor should be given an extension of the schedule and/or compensation for additional costs. All excusable delays are compensable because they aren’t caused by the contractor.

Non compensable delays are generally those that are caused by the contractor. This makes sense, if the contractor makes a mistake or delays their own work, they shouldn’t be given extra time or money.

When and how to claim a concurrent delay

A concurrent delay can be claimed by a contractor when the owner or a force majeure has caused a delay which has a greater effect than any delay the contractor is responsible for.

For example, if the contractor delayed the project by a week due to manpower issues, and the owner delayed work for two weeks reviewing submittals, the contractor could submit a request for a one-week extension. 

A contractor can also claim a delay if the concurrent delays were both caused by the owner or a force majeure. If the delays were excusable and compensable, the contractor should receive some extension of time or cost reimbursement.

On the other hand, if the contractor caused a more significant delay than the owner or force majeure, then there’s no reason to submit a claim, since an extension probably won’t be granted. To the same extent, if concurrent delays were both caused by the contractor, the claim would probably be denied.

For example, if the contractor delayed the project by week due to manpower issues, and the owner caused a one-day delay reviewing submittals, the contractor probably won’t be granted an extension.

If you decide to submit a concurrent delay claim, follow the procedures outlined in your contract with the owner or GC. This usually means you will have to notify them of the delay as soon as possible, and then file a claim substantiating the event and the cost or delay to the project.

3 delay clause examples from construction contracts

Concurrent delays are not clearly addressed in many contracts, so contractors have to rely on the language relating to project delays. This can mean that a contractor may not receive compensation if the type of delay isn’t specified in the contract.

1. AIA General Conditions A201-2017

Section 8.3 of the AIA General Conditions document A201, entitled Delays and Extensions of Time, states:

“If the Contractor is delayed at any time in the commencement or progress of the Work by (1) an act or neglect of the Owner or Architect, of an employee of either, or of a Separate Contractor; (2) by changes ordered in the Work; (3) by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions documented in accordance with section, or other causes beyond the Contractor’s control; (4) by delay authorized by the Owner pending mediation and binding dispute resolution; (5) by other causes that the Contractor asserts, and the Architect determines, justify delay, then the Contract Time shall be extended for such reasonable time as the Architect may determine.”

Additionally, Section 15 provides the procedure for the submission of claims for extending the contract schedule or asking for additional compensation.

2. California High-Speed Rail project contract

The contract laid out for work on the massive California High-Speed Rail project outlines delay damages as being “limited to additional field office and jobsite overhead costs incurred by the Contractor directly attributable to the delay of a Completion Deadline.”

Additionally, the contract states:

“Home office overhead is excluded from delay damages and not compensable under the Contract. Before the Contractor may obtain any increase in the Contract Price to compensate for any delay damages, the Contractor shall have demonstrated to the Authority’s satisfaction that:

• The Project schedule in fact sets forth a reasonable method for completion of the Work.

• The change in the Work or other event or situation that is the subject of the requested Change Order has caused or will result in an identifiable and measurable delay of the Work and impact the Critical Path affecting a Completion Deadline.

• The delay damage was not due to any breach of Contract or fault or negligence, or act or failure to act of any Contractor-Related Entity, and could not reasonably have been avoided by the Contractor, including by re-sequencing, reallocating or redeploying its forces to other portions of the Work or other activities unrelated to the Work (subject to reimbursement for additional costs reasonably incurred in connection with such reallocation or redeployment).

• The delay for which compensation is sought is not concurrent with any other delay for which the Contractor is not entitled to delay damages.

•The Contractor has suffered or will suffer actual costs due to such delay, each of which costs shall be documented in a manner satisfactory to the Authority.”

Learn more about the California High-Speed Rail

The California High-Speed Rail Project involves hundreds of construction businesses.

Get the facts you need to know about the project — plus contact information necessary to communicate with those at the top of the payment chain.

3. Kinsley Construction subcontract

Example from a subcontract from Kinsley Construction:

§5.1 Scheduling, states:

“The Subcontractor shall cooperate with the Contractor in scheduling and performing the Work to avoid conflict or interference with the work of others. The Subcontractor shall provide the Contractor with schedules or schedule updates as required by the Contractor and provide coordination drawings if deemed necessary by the Contractor. Within ten {10) days of issuance of the Subcontract, Subcontractor shall provide its initial schedule, broken down by activity which correlates to the Schedule of Values to be provided pursuant to Article 7.1.1 herein and which includes durations for each activity. To the extent Contractor utilizes a CPM schedule for the project, Subcontractor shall provide Contractor any cost loading and/or resource (labor) loading required for the Subcontractor’s work activities in the CPM schedule. Upon request, Subcontractor shall be provided a copy of the project schedule, in paper or electronic Adobe PDF format. In the event of a delay, regardless of the cause, Subcontractor will provide the necessary manpower, equipment and supplies, including multiple shifts and overtime, to recover the schedule and achieve the milestone or completion dates set forth in the Schedule or Contact Documents at no additional cost.”

Getting help for your concurrent delay claim

Receiving compensation or a schedule extension due to concurrent delays can be a complicated endeavor. Project teams have to analyze separate delays to determine liability and compensability before determining what effect the combined delays had on the project.

Contractors need to know the types of delays they can be compensated for, which are usually described in the contract documents. Most delays caused by activities outside the contractor’s control entitle the contractor to some form of compensation. When combined with concurrent delays caused by the owner or other force majeure events, contractors may be eligible for compensation, depending on the effects of each delay.

The key point for contractors is to always read your contract carefully and ask to see a copy of the contracts further up the chain if they are referenced in your contract. You need to know the terms you are agreeing to before you begin work. If you have questions or don’t understand the terms that deal with delays, ask a construction attorney for assistance.

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