Analyzing Concurrent Delay

Concurrent Delay Analysis: Part 2

By: Charles Choyce

As discussed in post 1, “Concurrent Delay Defined,” the courts have recognized the fact-specific nature in determining concurrent delay. However, the following general guideline has been established in numerous court decisions and published recommended practices where concurrent delay is an issue: For a delay to be concurrent, it must affect the critical path.[1]  Delay events that merely consume float, or slack time, on non-critical activities are not concurrent delays.

The Association for the Advancement of Cost Engineering International (AACEI) Recommended Practice on Forensic Schedule Analysis amplified this principle by stating that in determining concurrent delay, two major functional requirements must occur:

  •  The delays must occur during or impact the same time analysis period.
  • The delays, each of which, absent the other, must independently delay the critical path.[2]

In making this determination, several issues must be resolved that are discussed in detail in the AACEI Recommended Practice. Among these are the following:

  • Must the delays occur at exactly the same time (day or hour) or within the same time period? While not endorsing either concept, the AACEI notes that using a schedule update period, typically monthly, is one approach that can be used:

“The functional theory also recognizes the real-world limitations of exactly measuring delays and limitations of scheduling accuracy. While CPM schedules measure activities and events to the day, it is often difficult to retrospectively identify, with the exactitude of a day, the events on a project. By measuring possible concurrent delays with a measurement period larger than a day, the functional theory accommodates this real-world limitation.”[3]

The AACEI also notes that long periods of analysis may produce greater possibility for anomalies. If such periods are to be used, they should be explained and documented to avoid the charge that the periods of analysis were selectively chosen.

  • Can any delayed path of work that exhibits negative float as measured against the contract completion date be considered concurrent if the delay occurred during the same period of measurement? The AACEI generally adopts what is commonly known as the “longest path” theory—that the only path of float that should be considered is the critical path that drives the completion of the project.[4]
  • Whether “blindsight”— looking at the schedules as they were prepared and forecasted delay at the time of the events—or “hindsight”—looking at the actual as-built events—may be utilized in assessing the impact of delay events. While not endorsing either concept, the AACEI generally recommends that the blindsight method can be useful in establishing entitlement to time extensions and compensation during the course of the project based on the contemporaneous schedule updates. However, in a retrospective analysis, AACEI suggests that hindsight may be preferable.
In the next installment of this series, we will discuss a number of methods to apply these general standards in determining concurrency.

[1] Id., p. 10–11 (and cases cited therein); Association for the Advancement of Cost Engineering International Recommended Practice 29R-03, “Forensic Schedule Analysis,” p. 18.

[2] AACEI Recommended Practice 29R-03, p. 103.

[3] Id., p. 105.

[4] Id., p. 106.

The views expressed in this article are those of the authors and do not necessarily reflect the position or policy of Berkeley Research Group, LLC.