Delays are an inevitable part of any construction project. However, when multiple delays occur at the same time, it can have a significant impact on the project timeline and budget. This is known as concurrent delay, and it is a common issue that can cause disputes between contractors and owners. In this article, we will explore what concurrent delay is, its impact on construction projects, and how to manage it effectively.
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What is Concurrent Delay?
Concurrent delay is a situation where two or more delays occur at the same time, causing a delay in the project completion. These delays can be caused by various factors, such as weather conditions, design changes, or unforeseen site conditions.
For example, if a contractor experiences a delay due to a design change, and at the same time, there is a delay caused by inclement weather, it is considered a concurrent delay. In this scenario, both delays are happening simultaneously, and it can be challenging to determine which delay is responsible for the project delay.
Types of Concurrent Delay
There are two types of concurrent delay: excusable and non-excusable. Excusable concurrent delay occurs when both parties are responsible for the delay, and neither party can be held liable. Non-excusable concurrent delay occurs when one party is responsible for the delay, and the other party is not. In this case, the responsible party can be held liable for the delay.
Impact of Concurrent Delay on Construction Projects
Concurrent delay can have a significant impact on construction projects, including:
Time Extension
The most obvious impact of concurrent delay is a time extension. When multiple delays occur at the same time, it can significantly impact the project timeline. This can result in the project being delayed beyond the agreed-upon completion date, causing inconvenience and additional costs for both parties.
Increased Costs
Concurrent delay can also lead to increased costs for both the contractor and the owner. The contractor may incur additional costs due to the extended project timeline, such as labour and equipment costs. The owner may also incur additional costs due to the delay, such as extended overhead costs and lost revenue.
Disputes and Claims
Concurrent delay can often lead to disputes and claims between contractors and owners. This is because it can be challenging to determine which party is responsible for the delay and how to allocate the costs associated with the delay. This can result in lengthy and costly legal battles, which can further delay the project and increase costs.
Managing Concurrent Delay Effectively
To manage concurrent delay effectively, it is essential to have a clear understanding of the project timeline and the causes of the delay. Here are some tips for managing concurrent delay:
Keep Detailed Records
The key to managing concurrent delay is to keep detailed records of all project activities and delays. This includes documenting the cause of the delay, the duration of the delay, and any costs associated with the delay. This information will be crucial in determining the impact of the delay on the project timeline and budget.
Communicate Effectively
Effective communication is crucial in managing concurrent delay. Both parties should communicate openly and transparently about the delays and their impact on the project. This will help to avoid disputes and claims and ensure that both parties are on the same page.
Use Technology
Technology can be a valuable tool in managing concurrent delay. Construction project management software can help to track project progress, identify potential delays, and communicate effectively with all stakeholders. This can help to mitigate the impact of concurrent delay and keep the project on track.
Plan for Contingencies
It is essential to have a contingency plan in place to manage concurrent delay effectively. This plan should outline the steps to be taken in the event of a delay and how to mitigate its impact on the project. This can include having backup resources, such as additional labor or equipment, and having a clear understanding of the project timeline and budget.
Who is Responsible for Concurrent Delay?
Determining who is responsible for concurrent delay can be challenging. In most cases, both parties share some responsibility for the delay, making it difficult to allocate costs and determine liability. This is why it is crucial to have a clear understanding of the project timeline and the causes of the delay.
Rejection of Apportionment in England
In construction projects in England, the concept of apportionment of concurrent delay has been subject to scrutiny. The traditional English approach to concurrent delay has been the “prevention principle,” where if the contractor is prevented from performing their obligations by the employer, the employer cannot insist on performance at the original time. This principle has been applied even in cases of concurrent delay.
The rejection of apportionment in England has been upheld in various legal cases. One notable case is the North Midland Building Ltd v. Cyden Homes Ltd 2018 EWHC 2414 (TCC), where the court reaffirmed that the prevention principle applies to concurrent delay situations. The court held that if there are concurrent causes of delay, one of which is a relevant event that would entitle the contractor to an extension of time, the prevention principle prevails, and the contractor is entitled to an extension of time for the entire period of delay.
This approach highlights the importance of understanding the legal landscape regarding concurrent delay and apportionment in the construction industry in England. Contractors and owners must be aware of their rights and obligations concerning concurrent delay to avoid disputes and ensure fair treatment in case of project delays.
Practical Considerations when dealing with Concurrent Delays
When dealing with concurrent delays in construction projects, there are several practical considerations that stakeholders should keep in mind to effectively manage the situation:
- Early Identification: It is crucial to identify potential concurrent delays early in the project. By recognizing and addressing delays promptly, stakeholders can mitigate their impact on the project timeline and budget.
- Collaborative Approach: Collaboration between all parties involved in the project is essential to navigate concurrent delays successfully. Open communication and cooperation can help in resolving disputes and finding mutually beneficial solutions.
- Documentation: Detailed documentation of all delays, their causes, and their impacts is vital. Maintaining accurate records can assist in determining liability, allocating costs, and supporting claims if disputes arise.
- Risk Management: Implementing a robust risk management plan can help anticipate and mitigate potential delays. Identifying risks early on and having contingency measures in place can minimize the impact of concurrent delays.
- Regular Monitoring: Continuous monitoring of project progress and potential delays is key to managing concurrent delay effectively. Regular assessments and evaluations can help stakeholders stay informed and address issues in a timely manner.
By considering these practical aspects when faced with concurrent delays, stakeholders can proactively address challenges, minimise disruptions, and ensure the successful completion of construction projects.
Winning Approach to Construction Dispute Resolution
Concurrent delay is a common issue that can have a significant impact on construction projects. It can result in time extensions, increased costs, and disputes between contractors and owners. However, by keeping detailed records, communicating effectively, using technology, and planning for contingencies, concurrent delay can be managed effectively. It is essential for all stakeholders to work together to mitigate the impact of concurrent delay and keep the project on track.
Our lawyers’ extensive industry-specific knowledge and our commitment to justice make us the preferred choice for many businesses in the construction industry.
Our construction dispute lawyers are recognised among the best lawyers in England & Wales, and have regularly been asked and featured to write authoritative articles in the Financial Times, the Law Society and LexisNexis and have been quoted in City AM, the New Law Journal, Law Society Gazette and Litigation Futures.
Our unique approach to construction disputes means that we will:
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Mediation in Construction Disputes
Alternative dispute resolution, where suitable, provides many advantages for parties involved in construction disputes. Our construction disputes lawyers are strong advocates for mediation which can often lead to favourable and early settlements.
Several of our lawyers are trained mediators and expert negotiators who are registered members of the Chartered Institute of Arbitrators (CIArb) and the International Mediation Institute. Our expertise in mediation gives our construction lawyers a significant and unique advantage when navigating settlement discussions on your behalf.
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We provide flexible funding options including fixed fees and ‘no win no fee’ arrangements for your construction dispute.
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