Concurrent Delay Claims; Requisites For Success

Concurrent delay can be defined as situation where two or more independent delays falling under "employment risk" and "contractor risk" occur together and affect the project completion date.

They are an important part of claims management since both the contractor and the employers use the concurrency shield as a way to defend delay claims. Where contractors use it to defend any delay damages, employers can use concurrency as a way to avoid paying compensation for prolongation to contractors.

Concurrent delays have a reputation of being difficult to prove and analyze. In case the employer and contractor concurrently delay the work, responsibility cannot be attributed to a certain party and hence cannot be shared.  In such situations, delay experts, having multiple years of experience are consulted, and they're are able to assess the delays and the right way to proceed with delay claims.

The Requisites

Project delays may result in numerous changes within the project form late completion to the need for acceleration and even contract termination. Depending upon the cause of the event, when a party suffers damage, the other party should compensate for the damage.

In successful concurrent delay claim practices, the following aspects need to be considered

• The awareness of parties regarding the contractual entitlement for EOT (extension of time and the DD delay damages (DD)
• The awareness of parties regarding concurrent delays and analysis methods
• Immaculate documentation by the parties

In an attempt to acquire compensation for the time and cost incurred, the practice requires parties to be knowledgeable about the delays. The party that suffers damage should be able to recognize the delayed event when it happens, the damage it incurs, and the parties that are responsible for it.

Contractual Entitlements

In case the contractor is responsible for causing delay, and it has resulted in the extension of the project completion date, contractors shall be paying delay damages to the employer which are reasonable estimates premade in case of losses of the employers most likely to be incurred if the project is delayed.

In case the contractor suffers any delay, and the employers are at fault, the contractor is entitled for EOT and also the payment of any costs incurred and the profit. .In case the delay was caused due to reasons both parties couldn’t control such as the discovery of fossils or weather conditions the contractors may be entitled to the costs incurred but not the profits.

Claim Procedure

Claims that are relevant to time are often difficult form the time of preparation to evaluation. Time-related claims need to be resolved using three aspects including; liability, causation and damages. The process of claims management consists of 5 stages briefly discussed below:

• Claim identification: the very first stage of claim handling and is critical for the claims process. Failure to identify claims correctly can result in loss of claims entirely.
• Claim notification: the stage involves notifying the other party about the situation in an attempt to work out another solution that doesn't include spending costs associated with claims.
• Claim Examination/Presentation: Using the documents provided, the claim examination is done by the contractor which is sent to the contracting party
• Claim evaluation: Upon analysis of the claims and other supporting documents, in a certain amount of time decided in contracts. The project engineer will evaluate the claims based on three factors- occurrence of causal events, b) delay to the work progress, c) delay to completion.
• Claim negotiation: involves representation of claims and response by both parties. Both parties can express their position.  Acclaim negotiation is only successful when it is flexible because it is focused on solving the issue between the two parties.

Concurrent Delay And The Approach To Distribution

In case of a concurrent delay where both the contractor and employees are responsible for delaying the critical path of the project, determining who caused the delays may become difficult. The consequences and impacts should be apportioned among the two parties depending upon their contributions and should be able to answer the questions below:

• Is the contractor going to be granted an extension of time?
• Entitlement of employer to recover delay damages
• Entitlement of contractor for recovery of any prolongation costs

Compensation amount and delay damages are pronounced depending on the entitled apportionment for the extension of time.

The Need For Expert Assessment

In case of several delays affecting projects, no rules govern the prioritization of the delays, and all cases need to be judged based on their own. This is one of the reasons why apportionment methods should be identified based on the circumstances. 

In case a decision cannot be reached, and parties decide on involving the courts, Delay experts are referred to, to determine the type of delay, parties at fault and how the parties should proceed.