CONCURRENT DELAYS AND TIME EXTENSION IN

CONSTRUCTION CONTRACTS CLAIMS

FACT OR FICTION?

By Lina S. Zureikat MSc. C.E, LLM, FCIArb, MRICS, FCIOB

CONCURRENT DELAYS AND TIME EXTENSION IN CONSTRUCTION
CONTRACTS CLAIMS

LINA ZUREIKAT
Manager – Claims and Disputes Resoltuion
Construction Management Associates (CMA)
MSc C.E, LLM, MRICS, FCIArb, FCIOB

EXPERIENCE
14 years experience
Contract Administration
Claims Preparation and Response to Claims/ Claims Rebuttal
Provide Expertise in Delay Analysis/Quantum in Arbitration

RECENT PROJECTS
EXPO 2020
King Abdulaziz International Airport –Jeddah
King Khaled International Airport - Riyadh
Shangri La Hotel Tower –Jeddah
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TIME IN CONSTRUCTION

 Commencement date of the works.

 The Time for Completion of the works.

 Delay is the time during which some part of a construction has been extended
beyond what was originally planned due to circumstance impacting on the
project.
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Liability Timing

Third
Employer Contractor
Party Concurrent Non-Concurrent

Type Compensability

Excusable Inexcusable Compensable Non-Compensable

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WHAT IS A CONCURRENT DELAY ?

 The occurrence of two or more delay events at the same time, and

 One is the responsibility of the Contractor and the other is the responsibility of
the Employer, and

 The delay is felt at the same time.

 For concurrent delay to exist each of the Employer Risk Event and the Contractor
Risk Event must be an effective cause of delay to completion.

SCL Delay and Disruption Protocol, 2nd Edition 2017 Guidance 10

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WHAT IS A CONCURRENT DELAY ? (Continued)

 Period of project overrun caused by two or more effective causes of delay (one is
caused by the Employer and one is caused by the Contractor) of approximately equal
causative potency.

 Delays caused by the events must be felt at the same time.

Stephan Furst, Keating on Construction Contracts, 10th edition 2016

True concurrent delay is the occurrence of two or more delay events at the same
time, one an Employer Risk Event, the other a Contractor Risk Event and the effects
of which are felt at the same time.

Association of Advancement of Cost Engineering

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APPROACHES TO DETERMINE CRITICALITY OF EVENTS

1. Criticality of each Relevant Event is to be assessed in isolation.

a) The first Relevant Event is assessed to determine whether it was critical, and

b) The second Relevant Event is similarly assessed ignoring the existence of the
first one.

2. The critically of the two events is assessed taking into consideration all
circumstances.
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Scenario 1

Plan Time For Completion

As-Built
Contractor Delay
As-Built ''but for'' Contractor Delay
Employer Delay

Figure 1. The Employer’s Delay is not Effective Cause of Delay

No Concurrency
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Scenario 2
Plan Time For Completion

As-Built
Critical Delay
As-Built ''but for'' Employer Delay
Contractor Delay
As-Built ''but for'' Contractor Delay
Employer Delay

Figure 2. Only After the Contractor’s Delay Ceases, the Employer’s

Delay Becomes Effective
No Concurrency
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Scenario 3

Plan Time For Completion

As-Built
Critical Delay
As-Built ''but for'' Employer Delay
Contractor Delay
As-Built ''but for'' Contractor Delay
Employer Delay
period of concurrency

Figure 3. Employer’s Delay and Contractor’s Delay are Causing Delay

for a Period of Time

Concurrency Exists
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Example 1:

Contractor Delay (2 Weeks) Employer Delay (1 Weeks)

Contractor Entitled to an Extension of Time for 1 Week

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Example 2:

Employer Delay (1 Week)

Contractor Delay (2 Weeks)

Contractor is not Entitled to an Extension of Time

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Example 3:

Employer Delay (2 Weeks)

Contractor Delay (1 Week)

Contractor would
Contractor be entitled
Entitled to a one-week
to a Two-Week Extension of Time
extension of time
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Example 4:

Employer Delay (2 Weeks)

Contractor Delay (2 Weeks)

Contractor would be entitled to a one-week

Contractor Entitled to a Two-Week Extension of Time
extension of time
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Example 5:

Employer Delay (2 Weeks)

Contractor Delay (2 Weeks)

Contractor would be entitled to a one-week

Contractor Entitled to a Two-Week Extension of Time
extension of time
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CONCURRENCY AS IT RELATES TO EXTENSION OF TIME

Malmaison Approach
“if there are two concurrent causes of delay, one of which is a Relevant Event and
the other is not, the contractor is entitled to an extension of time for the period of
delay caused by a Relevant Event notwithstanding the concurrent effect of the other
event”.

Henry Boot Construction (UK) v Malmaison Hotel (1999)

Where Contractor Delay to Completion occurs or has an effect concurrently with

Employer Delay to Completion, the Contractor’s concurrent delay should not
reduce any EOT due.

SCL Delay and Disruption Protocol, 2nd Edition 2017 - Guidance 10

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CONCURRENCY AS IT RELATES TO COMPENSATION

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FACTUAL CAUSATION

 The link between the Relevant Event and the harm.

 The breach by the defendant must in fact be the cause of the harm suffered by
the claimant. Otherwise the claim will fail.

 It has to be established that but for the breach the harm would not have
occurred.
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APPROACHES TO CONCURRENT DELAYS

The Burden of Proof Approach

Requires a claimant to show what part of the claimed loss has been caused
solely by the defendant in order for substantial damages to be recovered in
respect of it.

In the event of concurrent causes of delay/loss, no recovery would be

permitted unless the Contractor is able to show which part of the loss was
exclusively the Employer’s responsibility.

 Chances for the contractor to be compensated for damages are very low.
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APPROACHES TO CONCURRENT DELAYS (continued)

Guidance 14 Concurrent delay- effect on entitlement to compensation for

prolongation - SCL Delay Protocol

Where Employer Delay to Completion and Contractor Delay to Completion are

concurrent and, as a result of that delay the Contractor incurs additional costs,
then the Contractor should only recover compensation if it is able to separate the
additional costs caused by the Employer Delay from those caused by the
Contractor Delay. If it would have incurred the additional costs in any event as a
result of Contractor Delay, the Contractor will not be entitled to recover those
additional costs.
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APPROACHES TO CONCURRENT DELAYS (Continued)

The Devlin Approach

 Approach is derived from the judgment of Lord Devlin in Heskell v Continental

Express Ltd [1950] 1 All E.R. 1033.

 If a breach of contract is one of two causes of a loss, both co-operating and

both of approximately equal efficacy, the breach is sufficient to carry
judgment for all the loss.

 Court need not to assess which cause was more effective.

 Not recommended for construction disputes.

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APPROACHES TO CONCURRENT DELAYS (Continued)

The Dominant Cause Approach

 Approach was approved in City Inn Ltd v Shepherd Construction Ltd [2007]
C.S.O.H. 190

 If there are two concurrent causes of loss, the Claimant succeeds if he establishes
that the cause for which the Defendant is responsible is the dominant cause.

 A contractor must show causation in the sense that on the balance of probabilities,
and by using common sense, the relevant matter relied upon was the “dominant”
cause of the postulated loss.

 Does not resolve the problem where there is no one dominant cause.
CONCURRENT DELAYS AND TIME EXTENSION IN CONSTRUCTION
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Concurrency Under
United Arab Emirates Civil Code
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United Arab Emirates

 Article 290
“it shall be permissible for the judge to reduce the level by which an act has
to be made good or to order that it need not be made good if the person
suffering harm participated by his own act in bringing about or aggravating
the damage”.

Article 291
“If a number of persons are responsible for a harmful act, each of them shall
be liable in proportion to his share in it, and the judge may make an order
against them in equal shares or by way of joint or several liability”.

Article 246(1)
“The contract must be performed in accordance with its contents, and in a
manner consistent with the requirements of good faith.”
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United Arab Emirates (continued)

 Article 106
“A person shall be held liable for an unlawful exercise of his rights.”

 Article 390(2)
“The judge may in all cases, upon the application of either of the parties, vary
such agreement so as to make the compensation equal to the loss, and any
agreement to the contrary shall be void.“
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The Association of Advancement of Cost Engineering (aace)

Recommended Practice 29R-03

Practical Approach to Concurrency

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Literal Approach Functional Approach

 Delays must occur at the Same time  Delays need only occur within the
same period of analysis

 Concurrency is rare  More concurrency is recognized

 More compensation for both parties  Less compensation for both parties
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FUNCTIONAL APPROACH

 Two or more delays that are unrelated, independent, and on the critical path of
the project;

 Two or more delays that are the contractual responsibility of different parties,
but one may be a force majeure event;

 The delay must be involuntary;

 The delayed work must be substantial and not easily curable.

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DELAY ANALYSIS TECHNIQUES

Do not Demonstrate Concurrency Demonstrate Concurrency

 As-Planned vs. As-built  Time Impact Analysis

 Collapsed As-Built  Window Analysis

 Impacted As Planned
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TIME IMPACT ANALYSIS

 An Additive/Modelled Technique

 A Prospective Delay Analysis Technique

 Utilizes Schedule Updates

 Each schedule update represents the Contractor’s intentions for completion of

all remaining work prior to the happening of the event.
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TIME IMPACT ANALYSIS (Continued)

1. List all identified delay events in a table with the start and end dates,
durations, predecessors and successors.

Event Event Predecessor Successor

Event Schedule Data
start Finish Duration Activity Activity Relation Activity Activity Relation
Description Lag Lag Date
Date Date ID Name Type ID Name Type

2. Assess the liability for each delay event based on circumstances and contractual
obligations.

3. Identify the contemporaneous progress programs closest to the date

of each delay event.
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TIME IMPACT ANALYSIS (Continued)

4. Tabulate the data-dates and the projected completion date of each of the base
programs prior to inserting any of the delay events.

5. Convert each delay event to a new subset of activities, or ‘fragnet’, complete with
estimated durations and identified predecessor and successor activities in the
base program.

6. Insert each of the fragnets, one at a time, chronologically, into their

respective base programs. This process can be carried out once for EDE,
separately for CDE.
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TIME IMPACT ANALYSIS (Continued)

7. The calculated change to the completion date (loss or gain) for each
successive delay event is tabulated and inserted chronologically into the table.

Event
Event
Finish Impacted
Completion Event Event Event start date
Window Data Date date in Duration Completion Loss/Gain
Date Description Start date finish date in current
current Date
window
window
CONTRACTOR CAUSED DELAYS
UD01
UD02
UD03
EMPLOYER CAUSED DELAYS
UD01
UD02
UD03
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TIME IMPACT ANALYSIS (Continued)

8. Cumulative loss, or gains, are determined for EDE, CDE and concurrent periods.

Contractor Caused Delay Employer Caused Delay

Completion Impacted Impacted
Data Date Delay (days) Delay (days) Concurreny
Date Completion Date Completion Date
Window
UD01
UD02
UD03
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TIME IMPACT ANALYSIS (Continued)

Window Jan-18 Feb-18 Mar-18 Apr-18 May-18 Jun-18 Jul-18 Aug-18 Sep-18 Oct-18 Nov-18 Dec-18

B aseline Plan

Update 01 As B uilt 14 CDE 14 days Concurrent delay 14 days

(Feb 01, 2018) EOT 14 days
As B uilt 14 EDE 14 days Compensable delay = 0 days

Update 02 As B uilt 14 CDE 14 days

(March 01, 2018)
As B uilt 28 EDE 28 days

Concurrent delay 14 days

Original Completion EOT 28 days
Commencement Date Compensable delay = 14 days

Completion Date Completion Date

as of Feb 2018 as of March 2018
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PACING DELAYS – WHY HURRY UP AND WAIT !

 Deceleration of the work of the project, by one of the parties to a contract,

due to a delay caused by the other party, so as to maintain steady progress
with the revised overall project schedule.

 Pacing delay claim is advanced by contractors as a defense to potential

concurrency.

 Delay is a direct result of keeping pace with delays caused by the other party,
thus triggering a claim for a compensable extension of time.
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DIRECT PACING

Conduit Installation
FF 5
Wire Pulling
As-Planned SS 5

Conduit Installation
As-Built FF 5
Wire Pulling
SS 5

Delay Caused by Contractor

Delay Caused by Employer

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INDIRECT PACING
Original Completion
Data Date As Planned Schedule - Duration 55 W Date

Fan Coils Delivery - B lock A

20W FCU Installation - B lock A

20W Ducting

15W

Air Conditiong Works at B lock B

float 10w
45W
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INDIRECT PACING
Actual Completion
Data Date As- Built Schedule - Duration 70 W Date

Fan Coils Delivery - B lock A

15W delay FCU Installation - B lock A

35W
20W Ducting

15W

Air Conditiong Works at B lock B

25W Indirect Pacing

Delay Caused by Contractor

Delay Caused by Employer

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QUESTIONS AND ANSWERS