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Concurrent Delay is an invention of the Owner

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Rafael Davila
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On delay analysis, when concurrency exists you will get an extension of time for the concurrent time but no monetary compensation.

“The concurrent delay has to start on the same day, because otherwise, the first delay creates float in the schedule that the second delay merely absorbs.”

I do not believe concurrent delays exists at all. There is always one event that started first and thus created float you can use for pacing. Concurrent Delay is an invention of the Owner because it can work only to his favor.

http://www.long-intl.com/articles/Analysis%20of%20Concurrent%20Pacing%20...

Do you believe in Concurrent Delay?

Best regards,
Rafael

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Bialla Rafiq
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Dear Rafael 

I need some advise on below senario

We have project having milestones

one of the Milestone is installation works , we have an extension of time earlier due to employer delays.

Currently that work supposed to be finish in June,2017 however we unable to complete the works by the extended date of the milestone. 

As of October, 17 - we are still working on milestone.

In August - employer gave us access to one of the submilestone activities which supposed to be earlier as per approved baseline programme. and this work in progress parrallel to our works which we supposed to finish but not completed.  

Shall the employer delay are concurrent delays in this above case. Any case law reference document will be much apprecaited. 

 

Thanks 

Bilal Rafiq 

Carlos Arana
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10-4
Rafael Davila
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Carlos,

LD = LIQUIDATED DAMAGES as defined under your contract.
SCL = SOCIETY OF CONSTRUCTION LAW (UK)

http://www.scl.org.uk/

You should read their Delay and disruption protocol, is easier to read than AACE.

http://www.eotprotocol.com/registerformnonmembers.shtml

EoT = EXTENSION of TIME
EoT are first estimated using one of various methodologies, TIA is one of them, usually preferred over the others but under certain circumstances other methodologies are in order. Is used as a prospective method, a forward looking method, therefore timing is important otherwise might be contested.

For an easier to understand paper from one of the authors of AACE 52r-06 RP please refer to the following link, AACE complicates things.

http://www.ronwinterconsulting.com/Time_Impact_Analysis.pdf

As a matter of fact I use a simplified TIA based on a snapshot of the schedule just prior to the delay event and immediately adding the delay event. I have been successful as of today to convince Owners to accept this simplified methodology. For a paper that describes what I understand for TIA see article 4.5. on the following paper.

http://www.astadev.com/assets/pdf/astapowerproject/DelayAnalysisinConstr...

Monetary Compensation is another thing, is the theme of this thread, and took me a while until Andrew provided the reasoning under his posting no 32 that I saw the light. You should read the rest but concentrate on posting no 32.

Best regards,
Rafael
Carlos Arana
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God, schedule claims is a big, big world.
Can someone define what do LD and SCL mean? I’m thinking EoT = Estimate of Time, Am I right? Also, I’m reading AACE 52r-06 RP "Time Impact Analysis", after reading this thread I got a little confused (I got to call this "ripple confusion"): is a TIA the same as a EoT?
Thanks.
Rafael Davila
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A couple of days ago I got a book I am starting to read, some of you might be interested:

Construction Delays Extensions of time and prolongation claims by Roger Gibson.

Gibson Consulting - book synopsis
Book Preview on Amazon

Best regards,
Rafael
Andrew Flowerdew
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The American approach is maybe not 100% perfect but appears pretty fair. I think that’s maybe why the SCL Protocol adopted it rather than comply with the UK legal model. Surprised the ACCE RP didn’t adopt it.
Rafael Davila
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Andrew,

Brilliant, agree, sold a 100%.

There is a mistaken belief in the construction industry that after an extension of time has been granted there is an automatic entitlement to the recovery of loss and expense. Entitlement not ruled out but by no means automatic. The burden of proving that the breach has actually caused loss rests with the claimant.

Got it, was missing the reasoning behind this.

My thanks to all contributors to this thread.

Best regards,
Rafael
Andrew Flowerdew
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Anders,

I would say that the American solution is currently the fairest one.

Two issues at stake:

1. Employer LD’s:

The "prevention" principle and others, such as "neither party will hinder the other party", all originate from one of the most fundamental, oldest and universally applied legal principles in the world.

A party shall not benefit from his own wrong

Common law, civil law, sheriah law, etc, etc, all uphold this general principle - it was first recorded in England sometime in the early 1600’s but it was no doubt around before that as an unwritten rule.

As one American judge said in 1889:

[B]esides, all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, … These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.

That statement still holds true today.

So by granting a contractor an Eot to the full extent of the Employer delay, the contractor is protected from LD’s and therefore the Employer does not benefit from his own wrong, i.e. does not benefit from his own delay, (Note the City Inn approach is inconsistent with this). This is the enevitable result of applying the principle consistently to both parties, you can’t apply it as and when you feel like it.

2. Compensation due to the delays:

Having deprived the Employer of any compensation, (benefit), it therefore appears both inconsistent and wrong to allow the contractor any compensation. The staring point is therefore the contractor isn’t entitled to any. (Contractors may argue that by virtue of getting an EoT they are no longer in the wrong and therefore the principle doesn’t apply).

But, the contractor may have incurred costs due to the Employer delay, both direct and indirect. Direct costs, (eg the cost of doing some work if the delay was a variation for extra work), will and should be recoverable as otherwise the Employer gets something for free. Doubt anyone will argue with that - the contractor does some additional work or similar and should get paid for doing it.

The contentious costs are the time related costs, ie related to the EoT.

The American approach, (in general), is that the contractor can recover those costs that he can "apportion between employer and contractor delays". The SCL Protocol adopts this same approach but uses slightly different language - the contractor can "recover compensation to the extent it is able to separately identify the additional costs caused by the Employer Delay from those caused by the Contractor Delay".

i.e. the contractor can only recover those time related costs that are directly attribtuable to the Employer delay and nothing for his own delay. This appears fair to me, the contractor is not gaining any additional benefit from this, he’s just getting back the money that’s been spent due to the Employer caused delay, not full site overheads, etc, etc as would be the case in a normal EoT scenario.

The net result is that the contractor isn’t hit with LD’s and only gets back what’s he’s spent as a direct result of the Employer delay - I would say that’s about as fair as it can get. No one gets any additional benefit from this solution - basically, the contractor gets the same compensation as he would for a non critical Employer event - time related costs if he can demonstrate they were incurred as a direct result of the Employer event, eg brought in additional staff, etc.

Anyone got any fairer solutions they can think of?

This solution appears to have favour in international arbitrations, over the last couple of years I have been involved in three such arbitrations that adopted this solution - and was accepted by the tribunal and parties as a fair approach.
Mike Testro
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Hi Anders

In a time impact analysis all the events are impacted in strict chronological order of date of impact and each will drive the delay in turn - displaying consecutive delay periods on the critical path for each event.

The EoT is then calculated using the Dot On Principle.

When all the events are in place and the EOT has been settled then the concurrent position of the delay events will assist in apportioning Contractors loss and expense in accordance with the current law and conditions of contract.

Best regards

Mike Testro

Anders Axelson
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Mike,

I’m not sure how it can be said that "concurrency is not an issue regarding EOT and relief from LADs" - I must say I wholeheartedly disagree!

Can you elaborate?

Regards

Anders.
Mike Testro
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Hi Anders

Concurrency is not an issue regarding EoT and relief from LAD’s.

Time has no direct relationship to money.

Concurrency is evaluated when allocating loss and expense to whichever party is culpable for the delays.

Best regards

Mike Testro
Anders Axelson
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Dear all,

I think that in all this discussion it is important to limit the definition of "concurrent delays" to only those delays that are "truly" concurrent.

A "true concurrent" delay is where there are two delay events - one is an event that the contractor is responsible for under the contract, the other is an event that the employer is responsible for under the contract and where both events: (1) are independent from one another; (2) impact the programme/schedule at the same time and(3) impact the critical path of the programme/schedule and thus cause delay to completion.

If either (1), (2) or (3) above is not met (i.e. if the events are not independent (one causes the other) or if their impacts are at different times or non-critical) then causation of the delay to completion is logically determinate as per the normal principles of EOT entitlement - there is no need for recourse to any concept of concurrency to determine it.

The significance of "true concurrent" delays as defined above, however, is that the causation of the delay to completion is, in fact, logically "overdetermined" and therefore indeterminate. There accordingly needs to be a special legal rule of concurrency to tell us how to deal with such circumstances if the contract itself does not do so.

This is very much a live issue and there is still no real consensus among commentators exactly what the rule is or should be.

The legal purist solution is to revert to the "prevention principle" (the rule that an employer cannot insist that a contractor be held to a completion date when the employer has interfered with or "prevented" the contractor’s progress) - the reason why construction contracts have EOT provisions in the first place. In the event of truly concurrent delays as defined above, it cannot really be said that the employer is "preventing" the contractor from achieving its completion date. Accordingly, I would argue that a contract administrator is perfectly justified withholding EOT in such circumstances unless the contract specifically says otherwise.

Regards

Anders Axelson
Pezala Consulting
www.pezala.com
Rafael Davila
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Mike,

I believe in the use of buffers in a simple way, a single buffer at the end of job, this is how many General Contractors will target early in the hope of finishing on time without this meaning a change in contractual dates. Unfortunately some US contracts do not allow you to do so, even when this practice should be in mutual benefit.

It seems to me like NEC2/NEC3 is a radical approach, long overdue, some “Beautiful Minds” out there. Although I do not have a copy I believe Partnering is also embedded into it, I had a good experience at an Air Force National Guard job with this concept.

Best regards,
Rafael
Mike Testro
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Hi Rafael

Regarding your penultimate post - that is why the NEC form of contract uses buffers to absorb and allocate surplus float.

Best regards

Mike testro.
Rafael Davila
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Andrew,

Your postings I value even more than the case studies alone, jurisprudence at times changes to the opposite side; a good argument is always a good argument, you have posted many.

Thanks again for your postings.

Best regards,
Rafael
Rafael Davila
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Thanks Andrew,

Regarding "beyond reasonable doubt" I got it, no problem at all, should read Preponderance of the evidence.

Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases. The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.

I forgot, maybe in my anger on how unjust is the USA interpretation on pacing.

To me pacing always exists and true concurrency never, it is just that someone is using available float that opened up.

But-if, sorry, someone opened some float, got into liability and maybe saved the neck of the other, if you do not want to get into liability don’t open up float and don’t get into the way of others under the umbrella of concurrency, very convenient and one sided.

Best regards,
Rafael
Andrew Flowerdew
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Rafael,

Caselaw in the USA for and against the pacing delay argument. Quite a hard one to prove although it is a generally accepted principle that the contractor can slow down his non critical works to match critcal excusable delays.

The level of proof by the way in all civil cases is "on the balance of probabilities" and not "beyond reasonable doubt" - that’s the level of proof required in criminal cases.

Something often forgot by contract administrators and QS’s.
Rafael Davila
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Once the party that issues the claim proves he was not first but merely within the range of the total delay then the other party is the one who must prove beyond reasonable doubt there was cause and effect for concurrency to exist and that it was not pacing.

Come on, why the second into concurrency, if there is such a thing, has to prove there was pacing? There’s got to be a presumption of pacing unless proved otherwise. But-if is not enough to rule out pacing.

Best regards,
Rafael
Andrew Flowerdew
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All

I sadly think that the English courts may follow City Inn but you have to see the judgment set against the rise in popularity of a proportionate type remedy in Scottish law - not just in construction cases, so maybe there’s still hope. I think the judge saw an opportunity and was going to apply a proportional remedy irrespective of previous case law.

Quote from City Inn, (the judge used this as support for his proportionate approach):

[19] The foregoing construction of clause 25 is in my opinion supported by the approach taken to concurrent causes of delay in Federal tribunals in the United States. In Chas. I. Cunningham Co., IBCA 60, 57-2 BCA P1541 (1957), the Board of Contract Appeals considered the legal consequences where a contractor has claimed for an extension of time but is himself in default. The main opinion of the Board, delivered by one of its members, Mr Slaughter, states the law as follows:

"It is well settled that the failure of a contractor to prosecute the contract work with the efficiency and expedition requisite for its completion within the time specified by the contract does not, in and of itself, disentitle the contractor to extensions of time for such parts of the ultimate delay in completion as are attributable to events that are themselves excusable, as defined in [the relevant extension of time clause, corresponding to clause 25]. Where a contractor finishes late partly because of a cause that is excusable under this provision and partly because of a cause that is not, it is the duty of the contracting officer to make, if at all feasible, a fair apportionment of the extent to which completion of the job was delayed by each of the two causes, and to grant an extension of time commensurate with his determination of the extent to which the failure to finish on time was attributable to the excusable one. Accordingly, if a event that would constitute a excusable cause of delay in fact occurs, and if that event in fact delays the progress of the work as a whole, the contractor is entitled to an extension of time for so much of the ultimate delay in completion as was the result or consequence of that event, notwithstanding that the progress of the work may also have been slowed down or halted by a want of diligence, lack of planning, or some other inexcusable omission on the part of the contractor".

Isn’t that what Malmaison basically says??????????

According to the American version of the "The Construction Law Book" 1999 Vol 1 page 827, (in the footnotes), it is anyway. The authors use this same case to support the principle that the contractor gets an EoT to the full extent of the excusable delay as per Malmaison. This opinion hasn’t changed in subsequent versions either.

The judge in City Inn got it wrong, but who’s going to tell him? Well the passage has got the word apportionment in it, so I guess it was the nearest thing the judge could find to support what he wanted to do, just a pity apportionment doesn’t equate to proportionment in the context of the American case. Hopefully someone will point this out to an English judge when the point is debated.

Hey, if English law goes this way as well, let’s not keep records, let’s not do any programming and when there’s a multi million pound dispute, we’ll just get two people, (one for each side of course), to turn up to court and say I think this and that caused the delay.

The judge can then toss a coin and decide on what proportional split he fancies as a remedy. Obviously based on an objective assessment of the objective opinions given him!

City Inn should have been thrown out before it ever got to court due to the contractor failing to meet his burden of proof. That would have sent an infinitely better message to the industry i.e. maintain and or improve contract administration standards. Instead the case sends the exact opposite.

Ironically, had this case been in America the court would have quite possibly have ruled that the contractor had not met his burden of proof and given him nothing. The American courts don’t hold the same view as UK courts that someone has to win and someone has to lose. They’re quite happy not to give a party a remedy if the burden of proof hasn’t been met.
Rafael Davila
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Mike,

Even arbitrators, well an incompetent arbitrator, a Chart would speak a thousand words. The one you appointed? No wonder many people oppose to arbitration.

Toby,

Do lawyers have common sense, I didn’t know? Even if they do, can they design an integrated circuit or perform open heart surgery based on common sense? At times this is too technical to be handled just on common sense.

Best regards,
Rafael
Toby Hunt
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There certainly seems to be a view that a "common sense" approach is becoming more favourable again now, rather than a CPM based approach.

Mike Testro
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Hi Rafael

Those who sit in judgement on us rarely understand the process.

Last year I was attending an EoT adjudication review meeting.

I was in the middle of presenting my analysis when an eminent Barrister and Arbitrator (+Columnist) looked me in the eye and said "Why don’t you just fuck off and take your bar charts with you."

I would not have minded so much but he was our brief.

Andrew - Toby - David et al - may have some idea of whom I speak.

Best regards

Mike Testro
Rafael Davila
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Yes, “what caused the delay to completion” is key, otherwise the judge is playing "Solomon"/"Santa", I no longer have too much of admiration to our judges, the world is getting too technical, they no longer are making intelligent judgments. Maybe under arbitration you have a better chance of getting better decisions, experts on the matter are better apt to interpret these matters, but they do not create jurisprudence.

Even when you have demostrated cuase and effect our judges don’t get it, it is too techical for their knowledge.

What about those contracts, common in the US where the Owner when writing the Contract apportions available float to however reach to it first and very conveniently do not recognize it when against him and argue there was concurrency?
Toby Hunt
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On the City Inn judgement-

The positive is that it contains practical guidance on how one best determines where the critical path lies – by computer analysis or by a combination of evidence and common sense. It also covers what the correct approach is where two or more events contribute concurrently to a period of delay.

However the worry is that one of the things I have recently picked up on is that we are beginning to see cases (like this one) where the courts and arbitral tribunals are not looking at “what caused the delay to completion” but are looking at “what relief from LADs is it fair and reasonable to award”. Obviously in the latter case, critical path analysis which identifies causation, is irrelevant.
Mike Testro
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Hi Toby

Surely one flows from the other.

Unless you have demonstrated cause and effect then no calculation of LAD’s can follow - whatever the concurrency rules apply.

Best regards

Mike Testro
Rafael Davila
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If you take out the uncertainty of the decision making process then most decisions will be taken on time by the appropriate party; instead of counting on the excuse of concurrent events meaning no monetary compensation. The industry as a whole will benefit.

Perhaps in their lack of understanding of scheduling theory some judges are avoiding the issue, with some guidance of prominent institutions they should get it.

Maybe NEC and others will address the issue in the appropriate way; I hope this will go as far as to establish a good standard of practice and courts of law use it as a reference for these contracts that lack such clauses. It might take hundreds of cases until a few go to higher courts and establish jurisprudence.

Best regards,
Rafael
Andrew Flowerdew
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David,

The only support for the case I have seen is in articles written by lawyers! You hit the nail on the head when you said the decision depends on opinion. That’s why I don’t like it - rather than a decision based on an objective assessment of the facts and proper interpretation of the contract, it’s a gut feeling, subjective decision.

No doubt the judges will dress it up as an "objective cause based decision" but a few Canadian judges have been more honest about how it’s really done:

Evergreen Building Ltd v Haebler (1986) 23 C.L.R. 35 (B.C. S.C.) illustrates one such imprecise approach:

"I do so by apportioning two-thirds of the blame against [the contractor], particularly for his unwillingness to order the mechanical equipment. The three-month delay occasioned by that alone accounts for the delay in completion. The other one-third of blame is chargeable to [the Employer], particularly for his recalcitrance in refusing to accept any change quotations whatever between November 1979 and February 1980, which is the same three months more or less. His stubbornness was matched by [the contractors] stubbornness and a stand-off resulted. The fault was unequal but they both contributed to it."

A very objective and re-producable approach!

See also Prince Albert Pulp Co. v. Foundation Co. (1976) 8 N.R. 181 (S.C.C.):

"The trial Judge recognized that the damages to be awarded could not be ascertained by precise means. He had to make an estimate."

and Convert-A-Wall Ltd. v. Brampton Hydro-Electric Commission (1988) 32 C.L.R. 289 (Ont. Div. Ct.)

"the apportionment of liability cannot be a precise calculation.”

Bottom line, apportionment in my opinion injects far too much uncertainty into the commercial decision making process, (as does Dominant Cause), for both sides. There are many other issues but this is my main complaint.

Does any commercial party enter into a legally binding contract on the assumption that their legal rights and obligations may ultimately be determined by someone’s, (judge, etc), subjective gut feeling of what appears to be about right?

As for someone quoting City Inn’s too me - I just ask them to find support in English law for it and point them in the direction of Steria v Sigma [2008] 1 BLR 79 which was the last relevant case and clearly supports the Malmaison approach - but sadly it was just before the City Inn judgment came out.
David Bordoli
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Andrew

Your perseverance, posting on PP, and generosity and incisiveness of your replies is almost sufficient to make me visit the forums more often!

Don’t get me going about City Inn!

I suppose it is the lack of ‘law’ we have in England at the moment which makes any case tenuously linked to the English legal system a major event. I was surprised by the number of articles and support that the Opinion of City Inn received when it was first published.

Personally I do not like it… but in the scale of things my opinion is inconsequential. It is just that I don’t like so much reasoning that depends on opinion as opposing factions will always have a different opinion of how an apportionment should be made. Of course, holding that view of City Inn, it is not surprising that I should direct others towards Jeremy Winter’s comprehensive and well received paper.

I am often faced with opponents citing City Inn in their evidence which, in my point of view is a little premature, persuasive maybe but persuasive only in respect of similar decisions in the English Courts when such a matter arises. As you say, it has not been tested in the English Courts as yet so until then it is merely a decision of interest from another jurisdiction.

Having said that I was very encouraged by the comment made in Keating (First Supplement to the Eight Edition) at paragraph 8-021:

The court further held that the exercise of apportionment was similar to apportionment of liability on account of contributory negligence or con¬tribution among joint wrongdoers and therefore account should be taken of relative culpability in the causes of delay and the significance of each of the factors in causing delay. This is a radical and important departure from the approach outlined above, although there is some authority for apportion¬ment in different circumstances. It is suggested that in approaching the matter in this way the court placed too great a weight on the words "fair and reasonable". It is of course possible to provide expressly for apportionment in such circumstances but, in the absence of such a provision, it must be doubted whether a power to grant a "fair and reasonable" extension of time, whilst giving a wide discretion, is sufficient to give the power of appor¬tionment. Further this approach necessarily gives no weight to the argument set out above which derives from a proper construction of the contract. It might also be thought that an apportionment which gave weight to relative culpability imports questions of fault which are unhelpful in analysing delay.

Also others have expressed their doubts about the veracity of the Opinion. For instance Keith Pickavance’s commentary in the case report, (2008) 24 Const LJ 590, at page 667 and the conclusions to the review of the case by Daniel Atkinson at http://www.atkinson-law.com.

Regards

David
Rafael Davila
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For your knowledge I know of a contractor that currently is claiming for extended overhead of about one year for a 2 years original duration job, a 25 US$ million dollars job. At 6% for overhead we can grossly estimate $750,000.00 in extended overhead for one year. To us, small/medium sized contractors this is a lot.

Most probably the contractor will prove there was a delay caused by the owner, an issue with an offsite power line. The Owner will claim there was concurrency so only time extension applies with no monetary compensation. The contractor will argue these were pacing and not delays.

There is a lot of money that the contractor might lose if the court comes with a traditional ruling for concurrent delays. It might look like a fair decision, it is not, it is unjust.

It will take me a few days to get all your case references, but I will.

Best regards,
Rafael
Andrew Flowerdew
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There is also a section on concurrency in the ACCE RP 29R-03 worth a read.

Jeremy Winters paper doesn’t support the approach taken in the City Inn case and I have to say I entirely agree with him as does most people I have spoken too.

One important thing to bear in mind is that entitlement to an EoT and entitlement to monetary compensation are two distinct thing. Although it is the case that the contractor will normally get an EoT, he may also get money depending, as always, on what the contract says.

The SCL Protocol follows the American line of apportionment of costs but in slightly more stricter words. Basically if the contractor can seperate out the costs associated with the Employer delay then he can claim those. If he can’t, he gets nothing.

Sadly American caselaw isn’t the best to look at. Concurrent and sequential delay got a bit mixed up in some cases leading to a judge to conclude not that long ago:

Sunshine Construction & Engineering Inc v The United States (2005) 64 Fed Cl346:

"However, the thorough, insightful analysis in RP Wallace Inc v The United States (2004) 63 Fed Cl 402 concluded “In this court’s view, the welter of confusion on this issue stems not only from a general failure to interpret United Engineering in light of Robinson, but also from several decisions that use the terms "concurrent" and "sequential" interchangeably. Typically, these cases erroneously rely upon decisions applying the non apportionment rule to concurrent delays for support in applying the same rule to a sequential delay.”

The appotionment rule in the above statement is to do with LD’s, not the contractors compensation, but the incorrect use of the terms "concurrent" and "sequential" in previous cases means that if you dig deep enough, you can find just about any outcome you wish in American caselaw.

This is what it appears the judge in City Inn’s did and used old caselaw that actually did not reflect the American approach to concurrent delay as he claimed. In City Inn the judge decided to expand the use of proportionality as a remedy into the concurrency equation. Proportionality is a concept that has become increasingly popular in general Scottish law over the past few years, (hence the John Doyle decision), but was rejected as a suitable remedy for these kinds of cases in English law by the Law Commission in 1996.

We shall have to wait and see if the English courts now take up the Scottish approach in concurrency cases or continue to follow Chestermount and Malmaison for EoT cases. See Mirant Asia-Pacific (Construction) Hong Kong Ltd v Ove Arup & Partners [2007] EWHC 918, TCC for a recent concurrency monetary compensation case.

Scottish cases are merely persuasive in English law and do not set any precedent, that said, decisions are often followed where not inconsistent with English law or where the English judges think the remedy given may be a good idea. Hopefully in this case someone will persuade them that it’s not.
Rafael Davila
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For a UK protocol please follow the link:

http://www.eotprotocol.com/pdfs/pap29oct04.pdf

I understand the USA & UK similar rulings are not unreasonable on the contrary, but as a Contractor I want it all, time and compensation. I want to get to the bottom of it if in my favor.

http://www.scl.org.uk/files/winter.pdf

I found very interesting concepts under some of the references by David and the above mentioned protocol such as the concept of the "dominant" cause approach.

While at engineering school many years ago I had a professor for a course on Construction Law, he was a lawyer and would teach using the Case Study Methods used at many Law Schools. Well David gave me the homework, hope he would not follow up as my professor who on next lecture would at random pick up on any of the students and discuss the case with the student, at times swabbing the floor with the student and asking others to follow.

I believe these concepts are good to know for your use during negotiations, the idea is to get negotiating power not to get into litigation. I would follow Sammer hands down approach and appreciate very much David’s references. If the discussion reaches an impasse I would settle for time only.

Best regards,
Rafael
Samer Zawaydeh
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Dear Rafael,

The first article that you mentioned for "Long" is very thorough and included several cases, some of which had monetary compensation.

Again, it all depends on the Contractor and how thorogh they were in presenting the information and submitting the analysis on time.

With kind regards,

Samer
David Bordoli
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Rafael

Some more reading for the weekend:

‘How should delay be analysed – dominant cause and its relevance to concurrent delay’ by Jeremy Winter (http://www.scl.org.uk/how-should-delay-be-analysed-dominant-cause-and-it...).

“Jeremy Winter’s paper, prepared for the SCL International Construction Law Conference in London in October 2008, looks in some detail at the decision of Lord Drummond Young in City Inn Ltd v Shepherd Construction Ltd heard in the Scottish Outer House, Court of Session in 2007. The author looks first at the facts of the case and then the judge’s consideration of the case law, quoting extensively from the judgment and the cases referred to (which include Percy Bilton, Peak v McKinney, Chestermount Properties, Malmaison Hotel, Royal Brompton Hospital,Wells v Army and Navy and SMK Cabinets). The author then quotes the judge’s conclusions at some length before commenting on whether the judge correctly summarised the law and/or correctly applied it.”

I am afraid it costs 5GBP unless you are a member of the SCL. The section ‘The judge’s summary of the law on concurrent delay’ is very comprehensive and the following cases are considered:

Percy Bilton –v- Greater London Council
Peak Construction –v- McKinney Foundations
Balfour Beaty Building –v- Chestermount Properties
Henry Boot Construction –v- Malmaison Hotel
Royal Brompton Hospital –v- Hammond (no 7)
Wells –v- Army and Navy Co-Operative Society
SMK Cabinets –v- Hili Modern Electrics

Fortunately you can read these judgements for free at http://www.bailii.org/

Regards

David
Rafael Davila
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Mike,

This is just one of the responses I was looking for, a very interesting case I will take time to study during the week-end.

I found a link and read about time extension but nothing about the monetary compensation, the root of my question. I will look for other links to see if the monetary compensation is mentioned.

"On delay analysis, when concurrency exists you will get an extension of time for the concurrent time but no monetary compensation." In our courts EOT will follow but no monetary compensation, I have issues with the monetary compensation; this is where I am in some disagreement.

http://www.brewerconsulting.co.uk/cases/CJ0227RR.htm

Thanks very much,
Rafael
Mike Testro
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Hi Rafael

Concurrency is a real issue which has to be addressed.
It’s not just a get out for the Employer although it is very easy to reject a poorly executed EoT claim on the basis that there were concurrent contractor delay that have not been taken into account.

True concurrency is a very rare situation - the example used by the Judge in the Boot v Malmaison case was if at the start of the job the employer could not give access to the contractor and AT THE SAME TIME the contractor could not get a piling rig in place then true concurrency would be in place.

If the contractor got his piling rig ready before the client got his access problems sorted then the contractor would get full EOT and damages for the time when the site was opened.

If the client got the site opened and the contractor was still looking for a piling rig then there would be no EoT and lad’s would apply from when the site was opened unitl the rig arrived. Unless of course the contractor accelerated and finished early.

Concurrency applies to the period of time where the work is being delayed - ie the cause period.

The delay effect is consecutive not concurrent.

So if a contractor is waiting for a decision on what type of bricks to use then that would be an employers delay cause from when the brick information was required to when it was issued. This would cause a delay if all the brickwork related float was used up.

If the contractor’s scaffolding contractor had gone bust and the bricklayers were on standby until a new scaffolder could be hired then that would be a contractor culpable delay event on brickwork start.

The first test of concurrency is which event started first and then second is which one ended last.

Once that has been established then the concurrency rules are relatively simple to apply.

When you have a dozen or so events attached to different activities then it starts to get complex.

Best regards

Mike Testro
Rafael Davila
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Yes David, although I have my reserves about court rulings in this regard I cannot ignore reality, some/many courts of law recognize the concurrent effect, they grant time extension but not monetary reward.

Sammer, I believe whoever is late in the concurrency does not have the right to any claim, by the same token if the Owner is late then I believe his responsibility should not be limited to ganting time extension but also monetary. I know it is not necessarily how others interpret the issue.

To me at times it is a concept difficult to grasp, if a boxing match you might have a draw, but if a horse race only one winner, never a draw. This is precisely why I posted the question, to get a better understanding from different point of views.

Whatever additional comments you have will always be welcomed.

Best regards,
Rafael
David Wallace
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I’m of the opinion that the effect can be concurrent, not necessarily the event, which is probably sequential, which is where (I bleieve) the confusion comes from.

I think that you are right to question the existance of ’true’ concurrency to an event, but I wouldn’t necessarily lay the blame at the Owner/Engineer.
Samer Zawaydeh
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Dear Rafael,

This is a very interesting condition that might arise some one the time. But most of the time the Contractor is late.

I believe that the way the Contractor Manages his submittals and supporting documents regarding the Schedule and its activities being on time or ahead of time are key for a decision by an expert panel to determine which party caused the delay and which party is pacing.

With kind regards,

Samer