The definition of “concurrent delay” seems simple, but it can give rise to thorny issues including misunderstandings, not truly digging into the causes of the alleged concurrent delay, and the lack of apportionment of the concurrent delay period. This is why when dealing with any delay it is good practice to work with a scheduling consultant in conjunction with counsel that understands how to best prosecute or defend against delay-related claims. This includes dealing with the simple but thorny issue of concurrent delay. There is a difference between arguing concurrent delay and actually proving it or apportioning the time period that benefits your interests or allows you to understand the practicality of the delay period.
In a nutshell:
“If the contractor and the [owner] cause [independent] concurrent delays that affect the critical path of performance, neither party can recover delay-related damages unless the delays can be apportioned between the parties.” K-Con Building Systems, Inc. v. U.S., 131 Fed.Cl. 275, 328 (Fed.Cl. 2017). For there to be a concurrent delay, there needs to be independent delays by both the owner and contractor, and the independent delays needs to impact the critical path. “If two delays occur at the same time and one is on the critical path and the other is not, then the delays should not be considered concurrent.” CONBRIEF No. 2004-10, Concurrent Delay (2004).
Note that concurrent delay can occur in two different scenarios: (1) when both parties are responsible for delaying the same critical activity over the same period or (2) when each party delays a separate critical activity at the same time (there were multiple critical paths). Both delays must be independent of one another. In other words, the contractor’s delay cannot be as a result of, or contingent upon, the owner’s delay, or vice versa.
CONBRIEF No. 2005-12, Basic Analysis for Delay and Disruption Claims (2005)
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