Concurrent Delay

A concurrent delay occurs when independent delays overlap, each affecting the schedule and completion date of a construction project. Depending on project scale and complexity, two or more concurrent delays can act at the same time. True concurrency means the delay events of the client and the contractor both start and finish at the same time. However, true concurrency is very unlikely to occur. Reality shows that delays need only to overlap for a given period of time to qualify as concurring delays.

The most relevant aspect of concurrent delays is that courts, boards of contract appeals, arbitration panels, and experts, are inconsistent in defining and assessing concurrent delays. That is a direct consequence of contracts failing to include terms for matters of concurrency or doing it in an ambiguous way. Concurrent delays represent unique situations in which establishing liability is not a straightforward process. Although the consequences overlap, the causes are usually traced at various dates back in time. This leads to the difficult task of establishing the presence or absence of correlation. The most common bias here is to assume that if one event came after another, it must have been influenced by it.

While normal delays generate well-known contractual consequences, supported by either the client or the contactor, concurring delays leave many ends that are open to interpretation. Owners use concurrent delays to avoid being billed for extended overhead, change orders and other claims. On the other side, contractors invoke concurrent delays to escape paying liquidated damages and to recover extra costs associated with delays. A common example occurs when the contractor is already behind schedule by its own fault and the client triggers a second delay-producing event. Concurrent delays also take place when a delay caused by one party overlaps with an abnormal neutral event (extreme weather, social or political disturbance) causing an excusable event.

Judging concurring delays is complicated and verdicts are often unpredictable. An investigation is launched to establish culpability, with the first focus on confirming that the delays are indeed independent of each other. That is usually done through an analysis that proves the impact on the critical path of one delay persists when all the other concurrent delays are neglected. Another condition for concurrency as defined in AACE International RP 29R-03 is that none of the delays are voluntary. In addition, the delayed work has to be substantial and not easily correctable to constitute a claim. One possible outcome when no dominant cause of delay is found is apportioning delay. The decision must be fair for all parts, as verdicts on concurrent delays are often judged based on legal precedent. How cases are solved today will influence future cases.

When supporting their claims, parties should provide evidence derived from records of documents and communication. Such evidence must focus on pinpointing the exact moment the event causing the delay occurred. A cause-effect relation has to be proven, most often through a critical path analysis. Parties have an advantage when they can provide proof of identifying and addressing the danger of the delay with written notices.

Contractors should invest time and resources into making sure the contract’s requirements are well-known by all their personnel having an administrative role in the project. This is crucial for notifying delays in a timely manner and in applying for time extension. Prompt notice on anything that can potentially impact project completion should become a priority as any delays can have weight in court, even if the other party is also responsible for much of the delay. A contractor invoking a concurrent delay should always back their claims against a solid construction schedule. Owners should also take a proactive stance by being careful that the contract terms are enforced from the very beginning. The danger here lies in a more relaxed and passive attitude being mistaken by the contractor as implied consent.

Invoking a concurrent delay can constitute a strong defence for both contractors and owners. However, for that to be achieved, parties need to familiarise themselves with accurate tools for schedule updates, analysis, and forecasts. Concurrency of delay will probably continue to remain one of the most complex matters regarding construction claims, a double-edged sword that introduces uncertainty and maximises the potential for conflict.

Promoting peace in the pandemic

In partnership with its global Citizenship partner PeaceTech Lab, Hogan Lovells has taken an innovative approach to combat violence during the COVID-19 pandemic. Driven by research and the use of technology, the firm has supported PeaceTech Lab to launch the COVID-19 Violence Tracker, a new resource for policymakers, activists, and crisis response professionals to track and better respond to violence resulting from the current pandemic.

Over 120 lawyers from Hogan Lovells offices around the world have so far participated in the project, which aims to catalogue and highlight incidents and assist the vulnerable around the world. Incidents logged on the tracker include threats and physical harm, excessive force by police, governments and vigilantes, domestic abuse, xenophobia and the confiscation or abuse of essential resources as the virus spread worldwide.

Early findings indicate that countries with low infection rates of COVID-19 had a rise in deaths related to police brutality rather than the disease itself. In addition, the xenophobia, race-based attacks and abuse on Asian communities were increasingly perpetuated not only by individuals, but also by institutions, governments, businesses and the media.

Amy Roma, partner at Hogan Lovells, said: “The findings from this research have been very informative. It is disturbing that COVID-19 is being used as an excuse to discriminate against racial and ethnic minorities, prompt hate speech and expose racial injustices, but with clear data in hand showing these trends connected to the pandemic, it’s easier to work with organizations to prevent the violence from continuing and to promote peace.”

PeaceTech Lab CEO Sheldon Himelfarb added: “What we’re learning from tracking the relationship between the virus and the violence is a real wake up call for policymakers and local leaders alike, who need to commit additional essential resources to address the political, social, and economic fallout from the disease. Just as we all have a role to play in preventing the spread of the virus, we must all play a part in bringing peace to our communities.”

Pinsent Masons advises on New South Wales bushfire relief project

Multinational professional services firm Pinsent Masons is advising Laing O’Rourke on the first phase of recovery clean-up works following recent bushfires across New South Wales (NSW).

The NSW Government has selected Laing O’Rourke Australia as the lead contractor to undertake the clean-up of residential and commercial properties destroyed by the recent bushfires across the state. The construction and engineering specialist is currently engaging with the community regarding plans to deliver the project as promptly as possible.

The contract was announced in conjunction with an agreement reached by the federal and state governments to split the costs of the NSW clean-up, which are expected to run into the hundreds of millions of dollars.

Pinsent Masons advised Laing O’Rourke on the contract arrangements with the NSW Government. The Pinsent Masons team was led by partner Anthony Arrow and special counsel Katie Joukadjian.

Anthony Arrow says: “We are proud to have supported Laing O’Rourke with what is a vitally important project for the people of NSW impacted by the devastating bushfires. Given the crucial nature of the work, these arrangements were concluded at a rapid pace. Our team worked collaboratively with the State of New South Wales to agree contractual terms in record-breaking time, consistent with the urgency of providing this much needed support to impacted property owners as soon as possible.”

Pinsent Masons is also supporting Save the Children Australia via a donation to its response to the bushfires, and encouraging colleagues to seek out opportunities to help with relief and recovery efforts, either through hands-on voluntary activities or pro bono work.