Concurrent delay in

construction contracts
Hosam EL-Kmhawy
B.Sc., P.gd Contracts, FIDIC, CICCM, ECM
Contracts Department Manager
https://www.linkedin.com/in/hosam-elkmhawy
Concurrent delay in construction contracts can
be a tricky situation to navigate, as it involves
delays caused by factors from both the
employer's and contractor's side happening
simultaneously.
 The Challenge of Concurrent Delay
•Identifying and Proving It: Pinpointing true concurrent delay can be
difficult. It requires establishing that both employer and contractor caused
delays that impacted the critical path of the project at the same time .
•Fairness and Apportionment: Deciding how much delay is attributable
to each party can be complex. Some contracts allow apportionment, where
the delay is divided based on which party contributed more. However,
other contracts might not.
Potential Consequences for Each Party
 Contractor
•Extension of Time: If successful in proving concurrent delay, the contractor can
typically claim an extension of time for the project completion . This helps them avoid
liquidated damages imposed by the employer for delays.
•Prolongation Costs: Recovering additional expenses caused by the extended project
schedule can be more challenging. Some contracts might allow compensation for
employer-caused delays, but it depends on specific wording and proving the "but for"
test (i.e., the delay wouldn't have occurred but for the employer's action).
 Employer
•Liquidated Damages: The employer might still claim liquidated
damages if they can prove the contractor was responsible for some of the
delay, even if there was a concurrent employer-caused delay .
How Contracts Address Concurrent Delay
Specific Clauses: Some construction contracts have specific clauses that
address concurrent delay. These might outline how to identify it, the
process for claiming extensions or compensation, and potential
apportionment methods.
Industry Standards: In the absence of specific clauses, industry
standards and established protocols, like the Society of Construction
Lawyers' Delay and Disruption Protocol (SCL Protocol), might be used as
a guide for handling concurrent delay.
an example of concurrent delay in construction:
Scenario: A construction project for a new office building is underway.
•Contractor Delay: The contractor encounters delays in receiving a specific type of steel beam needed for the
building's frame. This delay is due to a shortage at the supplier's end (contractor's risk).
•Owner Delay: At the same time, the owner decides to make modifications to the building's electrical system. This
change requires additional design work and approvals, which delays the electrical subcontractor's work (owner's risk).
Concurrent Delay:
•Both the steel beam shortage and the electrical design changes delay the project, but they impact different parts of
the construction process.
•The key aspect of concurrent delay is that their effects overlap for a certain period. In this case, even if the steel
beams had arrived on time, the electrical work wouldn't have been ready for the next phase of construction due to
the design changes.
Impact and Claims:

•The combined delays push back the project's completion date.

•The owner may assess liquidated damages against the contractor for the delay.

•The contractor can potentially claim an extension of time for the project due to the concurrent delay caused by the

owner's design changes.

This is a simplified example, but it highlights the key features of concurrent delay. It's important to note that proving

and apportioning the extent of each party's contribution to the delay can be complex and often requires expert

analysis of the project schedule.

Scenario: A construction project for a new hospital wing is underway.
•Contractor Delay: The contractor encounters delays in receiving critical electrical components due to a supplier
issue. This delays the electrical work by 2 weeks.
•Owner Delay: At the same time, the owner decides to make significant changes to the interior layout of the wing.
This requires revisions to architectural drawings and approvals, which also takes 2 weeks.
Concurrent Delay: In this case, both the contractor and the owner caused delays of 2 weeks each. However, they
affected different aspects of the project: electrical work for the contractor and design changes for the owner.
Here's the key point regarding concurrency:
•Even though the delays didn't happen at the exact same moment, their impacts overlapped for 2 weeks, hindering
overall progress. This overlap is the concurrent delay.
This overlap creates finger-pointing between the parties:
•The owner might claim the contractor is behind schedule and impose liquidated damages (fines for late completion).
•The contractor can argue that the owner's design changes caused a concurrent delay, mitigating their responsibility
for some or all of the liquidated damages.
Resolving Concurrent Delay:
Construction contracts often have clauses addressing concurrent delays. These clauses outline how to
analyze the situation and potentially:
•Grant an extension of time to the contractor for the impacted period.
•Apportion the delay between the owner and contractor based on the impact of each event.

Determining the appropriate resolution can involve scheduling analysis techniques to isolate the effects
of each delay.
 INSTRUCTOR CERTIFICATIONS AND CREDENTIALS
Hosam EL-Kmhawy
B.Sc., P.gd Contracts, FIDIC, CICCM, ECM
Contracts Department Manager
https://www.linkedin.com/in/hosam-elkmhawy