Conquering Concurrency Part 1: What is Concurrent Delay?
Assessing concurrent delay in relation to extensions of time and delay damages is often a problematic and complicated issue.
Not only is it necessary to identify the causes of delay, but depending on the terms of the contract and/or the jurisdiction (and hence the applicable law), it may also be necessary to apportion liability when there has been contribution to the delay by both the employer and the contractor. At the same time, neutral events, such as force majeure and parallel critical paths, together with contractor acceleration and/or mitigation measures may need to be considered.
In this two-part series on concurrent delay, we cover the following:
Part 1 – Gives an introduction to concurrent delay and explores what it is and is not; and
Part 2 – Explores the clauses on concurrent delay in relation to both time and money in standard form contracts in common use across Australia.
The preferred approach for assessing extensions of time and delay damages where there is concurrent delay is uncertain. This is partly attributable to the uncertainty and confusion as to how concurrent delay is defined and categorised in construction contracts. The standard form contracts differ in their apportionment of risk and in defining what concurrent delay actually is. Further, as we will see in Part 2, contract provisions either contain ambiguities and/or provide very little, if any, guidance on how extensions of time are to be assessed where there is concurrent delay.