Concurrent Delays in

Context (1)
 Published on July 18, 2017
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Moamen Osman, LLM, MBA , FCIArb, PMP, PSP ,CCP , PMI-RMP

Senior Delay Analyst, Airport Projects Division

Chapter 1
Definitions, types, and identification of concurrent delays

Definitions of concurrent delays

The definition, identification, quantification, and determination of

concurrent delays have been controversial issues between experts in the
construction business.[1] The controversy about concurrent delays stems
from the confusion between the overlapping delays and the overlapping
causes of those delays.
 This chapter elaborates on the many ways concurrent delays are defined
under different jurisdictions and highlights the similarities and
dissimilarities in those definitions.

Concurrent delays in UK

SCL Delay and Disruption Protocol[2] reasoned the contentious nature

of concurrency by the differences in views on how to correctly approach
concurrency when assessing EOT claim and the use of different
meanings of concurrency. Pickavance[3] claimed that people describe
concurrency not always in the same words or in the same context.

The view of the UK courts in defining concurrent delays can be

apprehended from the decision of Judge Seymour QC in the Brompton
Hospital case [4] putting forward a narrower definition of the
concurrent delays as follows:

‘… a situation in which, as it were, the works are proceeding in a

regular fashion and on programme, when two things happen,
either of which, had it happened on its own, would have caused
delay, and one is a [developer's time risk event], while the other is
not. In such circumstances there is a real concurrency of causes of
the delay.’

Though the view of Judge Seymour QC in Brompton Hospital was

found difficult to apply in the Scottish case of City Inn[5] at the first
instance, it was later agreed in the appeal of the same case.
SCL Protocol asserted that the occurrence of two or more delay events at
the same time where the Employer is responsible for one while the
Contractor is responsible for the other; had their effects are felt (wholly
or partially) at the same time, is termed as true concurrency.
Contrastingly, the instant where the Employer Risk Events and the
Contractor Risk Events occur sequentially but their effects occur
simultaneously is called concurrent effect.[6]

Pickavance[7] confirmed the SCL definition of concurrent delays and

differentiated the term ‘concurrent’ as two or more risk events caused by
two different parties to a contract, from the term ‘parallel’ that is used
when referring to two or more risk events cause by one party and sharing
the same effect. Pickavance went further to explain that concurrency
does not express the situation where two risk events occur sequentially
and apportionment can be applied to entangle their composite effect.

In Adyard Abu Dhabi v SD Marine Services[8] Concurrent delays

were defined as follows:

‘... a period of project overrun which is caused by two or more

effective causes of delay which are of approximately equal
causative potency.’

The definition in Adyard was adopted by Marrin[9] and by the editors

of Keating.[10]

JCT98 and JCT80,[11] as the most commonly used forms of contracts in

UK, refer to the term ‘concurrency’ in differently from the courts in UK
and most of the commentators. JCT consider concurrency as two time-
risk events caused by the same party. This definition refers to
parallelism and not concurrency, takes no account for the other party’s
delays.

Concurrent delays in US

The US definition of concurrent delays can be seen in Wallace v The

United States:[12]

‘Thornier issues are posed by concurrent or sequential delays - the

first occurring where both parties are responsible for the same
period of delay, the second, where one party and then the other
cause different delays seriatim or intermittently. Concurrent delay
is not fatal to [C's] claim for additional time due to excusable
delay, but precludes the recovery of delay damages. If a period of
delay can be attributed simultaneously to the actions of both [D]
and [C], this court has stated, there are said to be concurrent
delays, and the result is an excusable but not a reimbursable
delay.’

AACE RP 29-R,[13] which is the US counterpart of the SCL in UK,

listed five ‘similar but different’ definitions for concurrent delays. Those
definitions ultimately lead to the outcome that concurrent delays are two
or more events that cause delays within the same period of time. Those
periods may not be perfectly simultaneous. Either of the delay events
has impact on the completion date independently of the other. It also
concurs with the SCL definition of the true concurrency without
reservations. AACE RP 29-R[14]differentiates between the literal
concurrency where the delay events take place exactly at the same time;
and the functional concurrency where the delay events take place within
the same reporting period (normally a month).

Peters[15] claimed that individuals rarely agree on what the term

‘concurrent delay’ means. He stated that the debate continues over the
application and the contractual treatment of the combinations of the
basic delay categories (excusable, non-excusable, and compensable
delays). He listed a number of definitions of concurrent delays that were
adopted by a number of concerned professional institutions in US:

● ‘Concurrent delay is experienced on a construction project when

two separate delay events occur during the same time period.’[16]

 ‘It is important to note that to be considered concurrent

delays, the delays need not actually take place at the same
time.’[17]
 ‘The events are considered to result in concurrent ... delays
when it is clear that one of the events caused a delay in the
schedule, but even if that event had not occurred, the schedule
would have been delayed anyhow by the other event.’[18]

Baram[19] and De Leon[20] shared the same assertion that the delays to
a project are said to be concurrent if the project would have been
delayed anyway by one event in the same amount of time had the other
event did not occur.

Reynolds and Revay[21] maintained that two or more delays are

considered concurrent when they take place separately at the same time
and each one delays the completion in isolation of the other. This view
was also adopted by Arditi and Robinson.[22]

Concurrent delays in UAE

The UAE Civil Transaction Code (CTC)[23] does not possess any
express provision or definition of the term ‘concurrent delay’. Reliance,
therefore, is put on the contract to define and determine delay
concurrency. Most of the arbitrators acting in UAE come from common
law background and tend to apply what their knowledge in concurrency
determination in UAE.

The application of the UAE CTC provisions and principles can sum up
to a sound approach to deal with the concurrent delays.
O'Leary[24] stated that similar results to the other jurisdictions where
the relevant terminologies are expressly defined can be concluded from
the UAE CTC by using the existing provisions. Berman[25] asserts that
outcomes from legal systems in UAE are often comparable to the
English law for similar facts because of the rooted fundamental
characteristics of fairness and equity in the UAE legal system which
stem from the Sharia Law and the Civil Code; and the experts’ frequent
use of common law customs and practices to fill the existing gaps in
UAE jurisprudence.

For instance, while the Contractor becomes liable for liquidated

damages if the completion of the project is extended, Article 878 of the
UAE CTC reliefs the Contractor from penalty if the delay to completion
occurs due to events that the contractor cannot prevent[26] such as the
employer’s exercise of its rights unlawfully (as provided in Article 106).

Article 290 of the UAE CTC provides for the consideration that the
court may take when assessing the compensation of the employer’s
actions that might contribute the delays to the completion. Article 291
can be interpreted as a provision of the courts apportionment of the
liability for the concurrent delays.

It follows that the above provisions can work integrally to constitute

defence against contractors’ claims for prolongation cost if the
contractor is responsible for delays that are concurrent with the
employer’s delays.

Types and identification of concurrent

delays

Delays are classified in accordance to the context they are in. Keane and
Caletka[27] set the boundaries to categorize delays as follows:

1. Delays can be employer risk event when caused by the actions of

the employer or contractor risk event when caused by the actions
of the contractor.
2. Delays are excusable delays when caused by the employer’s
actions and result in prolonging the planned completion; or non-
excusable delays when caused by the contractor’s fault or
negligence.
 3. Delays are compensable delays when they are employer’s risk
events and their damages are expressly provided in the contract as
recoverable; or non-compensable delays when they result from
contractor’s risk events or not expressly listed in the contract as
recoverable.
4. Neutral events occur out of either party’s control (e.g. force
majeure or natural disaster) and are excusable but not
compensable.

In UK

There are two possible instances of concurrent delays as explained by

the SCL Protocol[28] and Pickavance:[29]

1. True concurrency: two causes actually operating at the same time

causing the same delay to progress which is likely to have the same
effect on completion.
2. Concurrent effect: two causes operating sequentially and are likely
to have the same effect on completion.
3. Pickavance[30] averred that in the case of concurrent effect, the
critical path changes by the preceding delays. This results in float
generated on other paths and a new date of completion to which
the succeeding delays will compete. Then the proper way to
identify delays concurrency is by establishing all the events which
caused the incurred delays and update the programme with all the
shifts in timing; then establish the cause and effect of each delay as
it actually occurred accounting for the ever changing critical path.
[31]
In US

Baram[32] claimed that the challenge in handling concurrent delays is to

accomplish a four-step approach of identifying, quantifying, assigning
liabilities and apportioning liabilities. He categorized the delays into
excusable, non-excusable and compensable delays.

Marrin[33] and Baram[34] defined the excusable delays as the

responsibility of neither party such as unforeseen events, acts of God,
force majeure, labour and material shortages beyond the expectation of
either party at the time of the contract, etc.; the non-excusable delays as
the contractor’s delays; and the compensable delays as the employer’s
delays. Despite that Baram categorized the neutral delaying events as
excusable delays, he did not clarify whether they are compensable.
However, it is implied that they are not compensable delays since they
are not employer delays.

De Leon[35] regrouped the delays in a different way while maintained

Baram’s evaluation approach. He categorized the delays as excusable /
non-compensable; excusable / compensable; and inexcusable delays.

Baram[36] set three-step method to identify the concurrent delays; firstly

to construct an as-built schedule simulating all delays and the
circumstances around their occurrence; secondly to identify the
responsibility of each schedule task; and lastly to attribute each delay in
the schedule to the party responsible for it and accordingly categorize
each delay as excusable, non-excusable and compensable. This
categorization is a matter of contract.[37]
AACEI RP 29-R[38] established two-step approach to identify
concurrent delays: first analysing the liability of each delay event in
isolation and; second investigating whether each delay is concurrent
with another delay of different type. This will lead to the determination
of the excusability, non- excusability, and compensability of each delay.

An all-inclusive comparison was carried out by Peters[39] in a tabulated

form comprising of the common determinations on different
combinations of delays, in terms of excusability and compensability in
US in Table 1 below:
Peter’s table sheds strong light on how significant is the disconformity in
the commentators’ views which may lead to completely divergent
determinations.

In UAE
In the case 184/2008,[40] the court segregated each party’s delay to
allow for apportioning the damages. The employer had to change its
faulty design which imposed a new completion date for the project. The
contractor could not complete the works within the newly set timeframe
due to its own fault. The court awarded the contractor an extension of
time for the period of delay that was consumed in modifying the
employer’s faulty design. However, the court awarded the contractor the
remaining amount of the prolongation cost and the loss of profit, over
the period of the employer delay event, after subtracting the liquidated
damages, over the period of the contractor delay event.

The court decision in the case 184/2008 was a form of the non-
compensability of the period of the concurrent delays since the court had
almost set-off the prolongation cost against the liquidated damages, in
accordance with Article 390 of the UAE Civil Transaction Code 1985,
that yielded an amount not even close to either party’s expectations.

O'Leary[41] claimed that in construction delay claims in UAE, great

reliance is placed on the conditions of the contract to identify delays and
the liability for these delays; while the contemporaneous records play
important role in evaluating the criticality of each source of delay.

FIDIC’99,[42] as the most commonly used form of contract in UAE,

facilitates the identification of delays through listing the instances of
excusable delays that entitle the contractor to EOT. Sub-Clause 8.4
provides that the contractor shall be entitled to EOT in certain events
such as variations under Sub-Clause 13.3; exceptionally adverse climate;
unforeseen and out-of-control shortage of manpower or material; or any
prevention by the employer of the contractor to carry out the works.
Sub-Clause 8.5 adds up to the excusable delays listed in Sub-Clause 8.4
the delays incurred by the authorities in the contractor’s works had the
contractor diligently liaised with those authorities.

Analysis and summary

In general, concurrent delays are more comprehensively defined in UK

and the US in comparison with the UAE due to the existence of guiding
codes as to the SCL Protocol and AACEI RP 29-R. UK and US
differentiate between the true concurrency and the concurrent effect
which is not the case in UAE. Independency of delays is a key
consideration in the US definition of concurrent delays which is
commonly missed in other jurisdictions. Though no express definitions
exist in UAE CTC for concurrent delays, the decisions of the UAE
courts frequently are similar to others. This gives the judges or the
tribunals a margin of discretion to fill in the gaps and puts more reliance
on the contract language when identifying concurrent delays.

Several approaches were proposed and utilized under different

jurisdictions to identify delays concurrency while they all agree to begin
with defining the triggers of delays and their extents simultaneously; and
then establishing the liability for each delay event in isolation of any
other.

The literature review and analysis in this chapter seem to show

reasonable agreement between the three jurisdictions on the definition
and identification of concurrent delays. The coming chapters will
highlight the similarities and dissimilarities between those jurisdictions
in dealing with the concurrent delays.

[1] SCL Protocol (n 1) 1.4.1.

[2] SCL Protocol (n 1).

[3] Pickavance (n 8) 16.1.

[4] Royal Brompton Hospital NHS Trust v Frederick A Hammond

(No I) [2000] EWHC Technology 39.

[5] City Inn Limited v Shepherd Construction Limited [2010] CSIH

68; 2011 SC 127; 2011 SCLR 70; [2010] BLR 473; 136 Con LR 51;
[2010] CILL 2889; 2010 GWD 29-598; [2011] SC 127. City Inn case is
discussed in details in the following sections.

[6] SCL Protocol (n 1) 1.4.4.

[7] Pickavance (n 8) 1.28.

[8] Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848

(Comm), [2011] BLR 384, 136 Con LR 190.

[9] John Marrin QC, “Concurrent Delay Revisited” a paper presented to

the Society of Construction Law at a meeting in London on 4th
December 2012, February 2013, 2.

[10] Stephen Furst and Vivian Ramsey, Keating on Building

contracts (7th edn, Sweet & Maxwell, 2001) 8-025.
[11] Clauses 25.2.2 and 25.2.2.2 cited by Pickavance (n 8) 16.3.

[12] R P Wallace Inc v The United States No. 96-222 C (2004);

(2005) 21 Const LJ 378.

[13] AACEI RP 29-R (n 3) 4.2.

[14] ibid, 4.2-D-1.

[15] Thomas Peters, “Dissecting the Doctrine of Concurrent Delay”

2003 AACE International Transactions (CDR.01), 2003, 1.

[16] Construction Claims Monthly October 1993, Volume 15, Number

10.

[17] Andrew Ness, ‘When the Going Gets Tough - Analysing

Concurrent Delays’ < http://www.constructionweblinks.com >
accessed 10 January 2017.

[18] Gui Ponce de Leon, “Theories of Concurrent Delays” 1987 AACE

International Transactions (H6), 1987, 1.

[19] George Baram, “Concurrent Delays - What Are They and How to
Deal With Them?” 2000 AACE International Transactions (CDR.07),
2000, 1.

[20] Ponce de Leon (n 27) 2.

[21] Reynolds, R B, and Revay, S G “Concurrent Delay: A Modest

Proposal” The Revay Report, Volume 20, Number 2, June 2001.
[22] Arditi and Robinson, “Concurrent Delays in Construction
Litigation” 1995. Journal of Cost Engineering, 37(7), 20-30.

[23] Federal Law No (5) of 1985 the UAE CTC.

[24] Dean O'Leary, ‘Dealing with Concurrency in Construction

Delay Claims - A significant proportion of construction claims in
the UAE involve issues relating to the delayed completion of a
project’ < http://www.tamimi.com/en/magazine/law-update/section-8/
april-7/dealing-with-concurrency-in-construction-delay-claims.html>
accessed 15 January 2017.

[25] James Berman, “English Law Concepts in the Gulf Cooperation

Council Countries” a paper presented to the Society of Construction
Law at a meeting in London on 7th April 2009, April 2009, 1.

[26] This situation will be elaborated on through a subsequent section of

this research paper.

[27] John Keane and Anthony Caletka, Delay Analysis in

Construction Contracts(Blackwell Publishing Ltd, 2008) 122-123.

[28] SCL Protocol (n 1).

[29] Pickavance (n 8) 16.18, 16.19.

[30] ibid 16.16.

[31] ibid 16.17.

[32] Baram (n 28) 1.

[33] Marrin (n 18) 7-8.

[34] Baram (n 28) 1.

[35] Ponce de Leon (n 27) 1.

[36] Baram (n 28) 4.

[37] Bramble and Callahan (n 4) 2.

[38] AACEI RP 29-R (n 3) 4.2.

[39] Peters (n 24) 2.

[40] The Case 184/2008, Dubai Court of Cassation [30 December

2008].

[41] O'Leary (n 33).

[42] FIDIC Red Book 1999.