Introduction to Concurrent Delays

The delay occurrences are mainly from critical delays, which affect the critical path and contract completion date, resulting in prolongation claims and Extension of Time (EoT) claims to favor the contractor, if the contractor is not responsible for the delay.

Concurrent delays are a common occurrence in the construction industry, and they can have a significant impact on the progress of a construction project. A concurrent delay occurs when two or more events cause delays to a construction project at the same time. However, the question often arises as to whether concurrent delays are compensable under construction contracts.

In this article, we will explore why concurrent delays are generally considered excusable rather than compensable, and why they are only excusable between the contractor and employer.

Excusable vs. Non-Excusable Delays

Before we delve into concurrent delays, it’s important to understand the difference between excusable and non-excusable delays.

Excusable delays are those that are caused by factors beyond the control of the contractor, such as unforeseeable weather conditions, labor strikes, or changes in the scope of work. These delays generally allow the contractor to claim for an extension of time and additional costs incurred.

On the other hand, non-excusable delays are those that are caused by the contractor’s own actions or inactions, such as poor project management, defective work, or delays caused by the contractor’s subcontractors. These delays generally do not entitle the contractor to claim for an extension of time or additional costs incurred.

Concurrent Delays

Concurrent delays occur when two or more delays, one excusable and one non-excusable, occur at the same time. For example, a delay caused by unforeseeable weather conditions may occur at the same time as a delay caused by the contractor’s own delay in delivering materials. In this scenario, the question arises as to whether the contractor can claim for an extension of time and additional costs incurred as a result of the concurrent delay.

Compensable vs. Excusable Concurrent Delays

In general, concurrent delays are considered excusable rather than compensable. This is because it is often difficult to apportion responsibility for the delay between the contractor and employer. As a result, most construction contracts provide that concurrent delays are excusable, but not compensable.

Under a typical construction contract, if there is a concurrent delay, the contractor will be entitled to an extension of time, but will not be entitled to additional compensation for the delay. This means that the contractor will have to bear the cost of the delay, even if the delay was caused by factors beyond their control.

Why are Concurrent Delays Not Compensable?

One of the main reasons why concurrent delays are not compensable is that it can be difficult to apportion responsibility for the delay between the contractor and employer. For example, if there is a delay caused by unforeseeable weather conditions, it may be difficult to determine whether the contractor could have taken steps to mitigate the delay, or whether the delay was entirely beyond their control.

In addition, allowing contractors to claim for concurrent delays could lead to disputes and protracted litigation. This could further delay the construction project and result in additional costs and expenses for both the contractor and employer.

Impact of Concurrent Delays on Project Completion

While concurrent delays may be excusable, they can still have a significant impact on the completion of a construction project. Even if the contractor is entitled to an extension of time, the delay can still result in additional costs and expenses, such as increased labor costs or rental fees for equipment.

In addition, the delay may also impact the critical path of the project, which can further delay the completion of the project.

Mitigating Concurrent Delays

While contractors may not be able to claim for additional compensation for concurrent delays, they can still take steps to mitigate the impact of the delay. For example, the contractor may be able to accelerate the project schedule or take steps to improve the efficiency of the construction process. This can help to reduce the impact of the delay on the overall project completion time and reduce the costs associated with the delay.

However, it is important to note that the contractor’s duty to mitigate the impact of the delay is not unlimited. The contractor is only required to take reasonable steps to mitigate the delay, and is not required to take unreasonable or disproportionate steps that would result in additional costs or expenses.

Preventing Concurrent Delays

One way to prevent concurrent delays is to include clear and specific provisions in the construction contract that address the issue of concurrent delays. For example, the contract may require the contractor to give notice of any delays as soon as they become aware of them, or may require the contractor to take specific steps to mitigate the impact of the delay.

In addition, the contract may also include provisions that address the issue of concurrent delays caused by the employer. For example, the contract may require the employer to provide timely access to the construction site, or may require the employer to provide clear and specific instructions regarding the scope of work.

While concurrent delays are generally considered excusable rather than compensable, contractors can still take steps to mitigate the impact of the delay and prevent similar delays from occurring in the future.

Conclusion

It is important for both the contractor and employer to carefully consider the terms of the construction contract and to seek legal advice if there are any disputes or issues that arise during the construction project. By taking proactive steps to prevent and mitigate concurrent delays, contractors and employers can help to ensure the successful completion of the construction project on time and within budget.

Employer risk events and Contractor risk events occur concurrently/sequentially (with concurrent effect) there are several methods that are used to allocate the liabilities/damages. There are certain special cases where concurrent delays were also claimed, however, they cannot be treated as benchmarks.