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Your Critical Path Blog

Concurrent Delay: What Is A Concurrent Delay?

As discussed in the previous posting introducing the concept of concurrent delay, owners and contractors often argue for the existence of concurrent delay on their construction projects.  Sometimes these arguments make sense; sometimes they don’t. Most times there is a lot of money at stake in the form of delay damages.    These delay damages include the contractor’s extended general conditions and unabsorbed home office overhead costs that might result from an owner-caused delay that delayed the project’s completion or an owner’s assessment of liquidated damages that might result from a contractor-caused delay that delayed the project’s completion.

One common mistake is to conclude that concurrent delays need only be “concurrent” to be significant.  In other words, some assume that simply because the other party’s delay happened as the same time as the delay you caused, that the other party’s delay negates yours in some way.  To be truly concurrent, however, and to bar on the recovery of delay damages or the assessment of liquidated damages, the delays have to be more than just concurrent.  Unless the contract provides otherwise (the topic for another post), the delays also have to be critical. 

These days, a well-written construction contract provides clear and complete definition of the critical path.  However, even in this day and age, too many construction contracts do not define the critical path.  One of the many negative consequences of failing to define that term is that it may enable the parties to make questionable concurrent delay arguments.  In essence, it may allow a party to make an argument that a delay that was not critical is