Consequences of Concurrent Delay in Construction

1. 31-Oct-2023
Concurrent Delay
Consequences of Concurrent Delay in Construction

2. Mohamed Maged Hegazy
• Master in Construction Law – Salford University, UK
• Master of Business Administration – UoPeople, US
• B.Sc. Civil Engineering – Ain Shams University, Egypt
• Consultant – Saudi Council of Engineers
• CCP, Certified Cost Professional – AACE
• PMP, Project Management Professional – PMI
• P3O, Portfolio, Programme and Projects Offices – AXELOS, UK
• FIDIC Contracts Consultant, AIA (Brussels) Fellow
• Author of 50 Planning fundamentals & Fundamentals of Construction
Contracts
• Experience more than 20 years in mega-projects (Buildings,
Infrastructure & Roads)

3. Content
✓ Concurrent delay identification
✓ Contractual and legal principles
✓ Analysis approaches
✓ The technical perspective
✓ Recommendations

4. Concurrent Delay Definition
Definitions
The delay events normally happen at different timings, during different periods, affecting different paths of activities
and with different effects. Therefore, it is challenging to specify what parameters to be adopted to define the
concurrency. In this regard, AACE mentioned numerous definitions as follows:
(1) SCL Protocol: The term “concurrent delay” is often used to describe the situation where two or more delay events
arise at different times, but the effects of them are felt (in whole or in part) at the same time. To avoid confusion, this
is more correctly termed the “concurrent effect” of sequential delay events.
(2) Concurrent delay occurs when there are two or more independent causes of delay during the same time where
most courts do not require that the period of concurrent delay precisely match. The period of “concurrency” of the
delays can be related to circumstances, even though the circumstances may not have occurred during exactly the
same time.
AACE differentiated between literal concurrency (true concurrency) and functional concurrency (concurrent effect)
considering that the functional theory recognizes the real-world limitations of exact measuring of delays and
inaccuracy of programmes.

5. Delay in Design
ERE #1
EOT??
Contract
Completion Date
Additional Work
ERE #2
Definition Variables
• Timing of the events
• Independency
• Duration of delay (Effectiveness)
• The effect (Delayed paths)
Lack of Resources
CRE #1
Concurrency???
Concurrency???

6. Cases of Concurrent Delay
Concurrent Delay
(Excusable)
Compensable
(ERE exceeds CRE)
Non-Compensable
(CRE exceeds ERE)
ERE after Completion
(Net Method)
Excusable Delay (ERE)
In-Excusable Delay (CRE)
Excusable Non Compensable Delay
In-Excusable Delay
concurrent with
shorter Excusable
Delay yields a net
Excusable Non
Compensable
Delay
ONLY Time
Extension is
Granted
Should be
recovered
Excusable Delay (ERE)
In-Excusable Delay (CRE)
Excusable Non Compensable
In-Excusable Delay
concurrent with
longer Excusable
Delay yields an
Excusable Delay and
Partial Compensation
- Time Extension is
Granted with
prolongation cost
Excusable
Compensable

7. Legal Principles
1. Establishing Causation (Legal: breach or Factual: but for)
2. Prevention Principle
3. A Party Shall Not Benefit of Its Own Wrong
4. Contributory Negligence
5. Contractual Mechanism for Extension of Time
6. The "Dot On" Principle
7. Other Legislations - CMS

8. Prevention
The emergent of the prevention principle goes back to the 1838 case of Holme v Guppy (building contract)
where the employer was not able to give possession of the site, so this prevented the commencement of the
work in the due time. The Court of Exchequer (appellate court) established what Baron Parke called “clear
authorities” stating that: “if the party be prevented, by the refusal of the other contracting party, from
completing the contract within the time-limited, he is not liable in law for the default … The plaintiffs were
therefore left at large”.
However,acts of prevention by an employer did not set time at large if the contract provided for extension of
time in respect of those events (Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd, 2007).
In North Midland Building (2018), Judge Fraser J decided that the prevention principle is not an overriding
rule of public or legal policy. This means that the parties can agree to deal with the concurrent delay in any
other particular way, and the express terms prevail.
Twivy, in a SCL meeting in 2019, criticized the displacement of the prevention principle by express terms
relying on that it is an example of a very old principle of English law that a man shall not get benefits of his
own fault. Lord Finlay LC in New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France (House
of Lords, 1919) ascertained that: “this is regularly true in all cases: If that be a principle of law, that a party
shall not take advantage of its own wrong.”

9. Analysis approaches
All-or-Nothing Approaches. There are approaches that lead to an all-or-nothing solution as follows:
- Dominant cause approach (e.g., pacing situation). - First-in line approach (sequential delay).
The first-in line approach assigns responsibility of the delay to the first event of occurrence especially if the later event
did not cause additional delay. The delay caused by employer considered as sequential, not an example of concurrent
delay because the project was already delayed by contractor and the employer events did not in fact cause any
additional delay to completion (Royal Brompton Hospital, 2000 & Saga Cruises BDF, 2016). This approach of analysis does
not reflect the effect of the culpable delay because it does not segregate the effect of each delay event. So, this may lead
to unfairness.
“Dominant” word can have several meanings such as operative, ruling, prevailing and most influential. However, this is
not always correct to assign liability based on a dominant cause because it deprives the contractor of its right.
Independent Broadcasting Authority v EMI Electronics Ltd (1980)

10. Time-Related Approaches
The major legal analysis approaches that focus on deciding the entitlement of extension of time are:
- Apportionment approach. - Malmaison approach. - Other cases (DeBeers & Walter Lilly).
Money-Related Approaches
Regarding the money-related approaches, the apportionment approach is a bit similar to the burden of proof approach
(Walter Lilly: Global claim & Arcadis UK Ltd v May and Baker, 2013) where both of them examine the parties’
responsibility (causation)/ contribution to the damages but by using different methodologies.
Malmaison approach, 1999 (English School as per Walter Lilly, 2012): “if there are two concurrent causes of delay, one of
which is relevant, and the other is not, then the contractor is entitled to an extension of time for the (full) period of delay
caused by the relevant event notwithstanding the concurrent effect of the other event.”
The apportionment approach (Scottish School: City Inn Case, 2007) examines contribution of the parties which is similar
in nature to contributory negligence or contribution among the joint wrongdoers if no dominant cause.
Brodie McAdam asserted that this was wrong because it could make a contractor charged with liquidated damages for a
period that acts of prevention by employer were operative during it.
De Beers UK Ltd v Atos Origin IT Services UK Ltd (2010): "The general rule in construction and engineering cases is that
where there is a concurrent delay to completion, the contractor is entitled to an extension of time, but he cannot recover
in respect of the loss caused by the delay." This applies “time but no money” solution so the contractor gets an EOT, but
neither contractor nor employer gets compensation.

11. Contractual Mechanisms
The Standard Forms
Many contract draftsmen prefer to leave the problem of concurrent delay unaddressed. This results in little guidance
for any contract administrator in determining an assessment under the contract. Concurrent delay is not obviously
handled in the standard forms of construction contract used in the UK such as JCT and NEC.
It makes it confusing when a concurrent delay takes place because no standard approach is adopted, and different
rules and procedures may apply under different jurisdictions.

12. Extending Project Duration
The “Dot On” Principle
The Net Method vs The Gross Method
The “dot on” principle adds the duration of the extension of time to the current completion date, not to the date of
the event (the gross method). Therefore, each time the contractor gets an extension of time, it should be added
contiguously according to Balfour Beatty (1993) and Carillion Construction (2017).
Excusable Delay (ERE)
ERE #1
EOT #1
Contract
Completion
Date
Excusable Delay (ERE)
ERE #2
EOT #2

13. Special Case: ERE after the contract completion date
Excusable Delay (ERE)
ERE
In-Excusable Delay (CRE)
Contractor should
not be exonerated
Excusable Delay (ERE)
Extension of Time In-Excusable Delay
(LDs)
Contract
Completion
Date ASCE DAS 4.6: This type of delay
is referred to as “offsetting delay”
recognizing that an owner-caused
delay may result in recognizing a
noncompensable time extension
to offset all or a portion of any
potential liquidated damages.
SCL 10.14: Employer Delay to Completion does
not exonerate the Contractor for all its delays
prior to that Employer Delay to Completion
occurring. The effect of the Employer Delay
should be assessed and any EOT determined
due should simply be added to the contract
completion date.

14. Concurrency UK Cases of Law
Holme
v
Guppy
1838:
Prevention
Principle
and
Authorities'
Establishment
(Time
at
Large)
Leyland
Shipping
v
Norwich
Insurance
1918:
Dominant
Cause
and
But-for
test
(Proximate
Cause)
Henry
Boot
Construction
v
Malmaison
Hotel
1999:
Malmaison
Approach
Royal
Brompton
Hospital
v
Hammond
&
Others
2000:
First-in
line
Approach
Multiplex
Constructions
v
Honeywell
Control
Systems
2007:
Propositions
&
Authorities
Review
City
Inn
v
Shepherd
Construction
2010:
Apportionment
Approach
(Scottish
School)
Walter
Lilly
v
Mackay
2012:
English
school
provides
a
full
extension
of
time
for
the
concurrent
delay
North
Midland
Building
v
Cyden
Homes
2018:
Prevention
principle
is
not
an
overriding
rule
These cases are the major cases of law used in the assessment of concurrent delay with
mentioning the analysis approach adopted by each case:

15. Concurrent Delay – CMS (Other Jurisdictions)
- US: “No harm, no foul” rule applies and
neither party may benefit monetarily from
the delay.
- Australia: The current Australian authorities
favour the “first in time” approach considering
the sequential delays.
- Scotland: City Inn found that it must firstly
consider whether there was a “dominant”
cause, then apply “apportionment”.

16. Technical Perspectives
Critical Path Analysis vs Legal Analysis Approaches
Applying this explanation to the legal analysis approaches can be against the first-in line approach because the second delay
affects the programme paths with the same amount of delay as the first event plus an additional delay if any.
Also, as the delays overlap, the duration cannot be distributed between the reasons of delay according to the apportionment
approach. This endorses analyzing each delay event separately without considering a dominant cause of delay.
Therefore, it is only the Malmaison approach (extension of time for the (full) period of delay caused by the relevant event)
that complies with the technical point of view of the critical path analysis.
New Critical Path
CRE
Original Critical Path
Contract
Completion
Date
ERE Effect
ERE
EOT??
New Critical Path
ERE
Original Critical Path
Contract
Completion
Date
CRE Effect
CRE
EOT??

17. Summary of the Approaches
Dominant Cause
Approach
First-in Line
Approach
Apportionment
Approach
Time-but-no-money
Approach
Malmaison &
Burden of Proof
Approach
In conclusion, Malmaison and the burden of proof approaches do not allow a full solution individually in all cases, but
each one can solve a part of the entitlement. Malmaison approach looks for the extension of time entitlement, and the
burden of proof approach looks for the entitlement of compensation and damages.
On the other hand, dominant cause (all-or-nothing) and apportionment approaches provide a full solution individually
either assigning the full liability to one party or apportion the liability of delays and decide the extension of time and
damages accordingly.
However, the “time but no money” approach can be a fair solution as an application of sett off (no harm, no fool).

18. Logic and Common Sense
Unquestionably, critical path analysis is a helpful evidential tool, but it is not always determinative
as it has some limitations according to Mirant Asia Pacific and London Underground Ltd v Citylink
Telecommunications Ltd.
If there are insufficient records, the analyst will be in serious difficulty. Furthermore, quality of
data is crucial, and it may affect the correctness of the analysis.
These limitations are clear from the fact that analysts may produce different assessments,
whether, or not, they have used the same data and methodology because of the level of
subjectivity and amount of assumptions they involve in identifying the sequence and interpreting
results.
Therefore, as it is subjective in nature, it should consider applying common-sense tests.
In John Barker Construction, the judge said that: “the architect, amongst other things, must make a
“logical analysis” in a methodical way of the impact which the relevant matters had or were likely
to have on the contractor's planned programme." Logical analysis should be based on facts and
common sense in order to reach reliable results.

19. Recommendations
1. Clarity in contracts and law (definition, CP, TF ownership and consequences).
2. Official pacing notices, to consider the sequence of events and avoid constructive pacing problems.
3. Agreement on LDs for employer delay, SCL recommends that: “20.4 Arguments about proof of loss could
be reduced or avoided altogether if the contract contained an agreed amount per day that can be applied to each day of
prolongation. This is the reverse of the normal Employer's liquidated damages provision. It may be necessary to have a
number of different agreed amounts to be applied depending on the stage in the project.”
4. Due diligence of the mitigation duty by the contractor.
5. Partial taking over option can be applied as it may be for the sake of both parties.
6. Caring about the soundness of the programme revisions.
7. The EOT entitlements should be reviewed and adjusted with time, until all effects of delay
events are revealed (retrospectively) because the predictions using the prospective analysis are not always correct. However,
it’s normally important to move with lights on and avoid the constructive acceleration problems.

20. Case #1 – Dot-on Principle
• Critical Delay in material submission of a long lead item.
• Delay in approval.
Delay in Approval
ERE
EOT??
Contract
Completion Date
Delay in Submission
CRE
TF
Unimpacted Path
EOT
Impact of CRE
Cumulative Impact
1 2
2-1

21. Case #2 – Dependency of events and impact
• Independent ERE on a culpable delayed path by CRE.
Design Change
ERE
EOT??
Contract
Completion Date
Lack of Resources
CRE
TF
Unimpacted Path
EOT
Cumulative Impact
Independent Impact
Impact of CRE
1 3
2
2<3

22. Case #3 – Compensation (Retrospective)
• Independent events on sperate paths (Concurrent delays).
Delay in Design in B2
ERE #1
Contract
Completion Date
ERE #2
Lack of Resources in B1
CRE #1
Concurrency???
Additional Work in B3
EOT
Concurrent
EOT??
$$
1 2 3

23. Thank You