Challenges in Determining Concurrent Delay (Part 2)

Concurrent Delay Analysis: Part 4

By: Charles Choyce

In the previous post, I discussed the application of the “longest path theory,” which looks at the critical path in order to determine the existence of concurrent delay. This is not the only method used to address the concurrent delay issues. The Association for the Advancement of Cost Engineering International (AACEI) Recommended Practice also discusses the “but for” test or “zero float school” for analyzing concurrent delay.

Under the “but for” test, in our earlier example regarding the steel design delay, the owner might argue that but for the design delay, the contractor would have been 20 days late on the foundations, and thus that 20-day delay should be regarded as concurrent. Generally, the contractor who argues that his delay was not concurrent must establish that he would have completed on time in the absence of the critical path delay caused by the other party. In our example regarding the foundations and the owner steel delay, to rebut the contention of the but for argument, the contractor can contend that had there been no steel design delay, he could have added resources or done other management adjustments to avoid the 20-day delay on the foundations, but since the delay caused by the steel design was so great, it would have been futile to do so.

However, in a situation where the secondary delay is very close to the delay on the controlling critical path (e.g., the Baltimore case cited in the previous post), the contractor’s argument that he would have been able to finish on time might be less convincing. The specific facts of a case will be central to this determination.

One last point: what if the parties to the project agree that there is concurrent delay? Instead of granting a non-compensable time extension to which the contractor is entitled, the owner demands that the contractor accelerate the remaining work to mitigate the concurrent delay. Generally, the refusal of an owner to grant a time extension constitutes, when timely notice is given, a constructive acceleration of the work. All other things being equal, the contractor is entitled to recover the costs of accelerating the work. However, decisions of the Armed Services Board of Contract Appeals have held that a contractor may not recover the costs of acceleration due to concurrent delay.[1] These decisions have been criticized by legal commentators[2] and may not be followed by other courts or boards. Any party wishing to assert constructive acceleration as a result of concurrent delay should consult legal counsel to review this issue.

The final installment in this series will focus on practical considerations in analyzing concurrent delays.

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.

[1]Appeal of Hemphill Contracting Co., ENGBCA Nos. 5698, 5840, 94-1 BCA ¶ 26,491 (1994); Appeal of R.J. Lanthier, ASBCA No. 51636, 04-01 BCA ¶ 32481 (2004).
[2] See, e.g., W. Stephen Dale et al., “Reconciling concurrency in Schedule Delay and Constructive Acceleration” and T. Gourley, “Constructive Acceleration and Concurrent Delay: Is There a Middle Ground?” Public Contract Law Journal 39:2 (2010).