Practical Considerations in Analyzing Concurrent Delays

Concurrent Delay Analysis: Part 5

By: Charles Choyce

While the analytical methods of determining concurrent delay are important, a contractor should prepare contemporaneous updates during the course of the project that correctly and accurately reflect delay events as they occur. Similarly, in its review of contemporaneous updates, an owner should analyze any logic changes, insertion of delay events, and the linking of those events to ensure that they accurately reflect the events that occurred, and communicate with the contractor on these issues. Small adjustments in the schedule can result in significant changes in the delay calculations that may make a delay event compensable, concurrent, or inexcusable.When an allegation of concurrent delay is raised, the following items should be considered:

1. Are delays critical to project completion (i.e., on the critical path)?

2. Are delays independent or related? If delays are independent, it may be possible to apportion the independent delay issues as inexcusable or compensable. If the delays are, to use the language in several court decisions, “inextricably intertwined,” then the delays may be viewed as concurrent.

3. Are the periods of time in which delays occur the same (or nearly so)?

4. What did each party know at key points in time? As noted, the contemporaneous inclusion of delay events in the schedule or, at a minimum, contemporaneous notice of the impacts is important. Waiting to raise delay issues until after the project is completed can be problematic. Similarly, when the contractor raises issues that are allegedly the owner’s responsibility, the owner should determine the validity of the contractor’s position and, at the same time, be alert to point out potential areas of contractor performance that would create a concurrent delay.

While these factors are not exhaustive, their existence will affect the extent to which an alleged concurrent delay causes a delay to project completion. With a variety of tests and methods used to analyze concurrent delay, the question of concurrent delay remains one that often requires that an outside, experienced consultant, in conjunction with legal counsel, review relevant facts to provide a professional perspective.

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.