Concurrent Delay – Construction Contracts
To prove excusable delay, a contractor must show that the delay resulted from unforeseeable causes beyond its control or negligence. Additionally, the unforeseeable cause must delay the overall contract completion, i.e., it must affect the critical path of performance. Appeals of Ken Laster Co., 2020-1 B.C.A. (CCH) P37,659, 182855 (A.S.B.C.A. July 22, 2020)
This brings us to concurrent delay. Oftentimes, the government will raise this as a defense to a delay claim, stating that both the government and the contractor delayed the project at the same time. If true, the contactor is entitled to a time extension, but no money.
Delay experts sometimes use the concept of "near critical path delay" to determine if concurrent delay exists. This approach starts with determining which activity is driving the critical path during a particular month. By definition, this would be the activity with the most days of negative float. The delay expert will then look to the CPM activity with the second most days of negative float. And if there is a relatively small difference in days of negative float between the two, the second activity is treated as a "near critical" concurrent delay to the first activity.
However, in Amec Foster Wheeler Env't & Infrastructure, Inc. v. DOI, 2019 CIVBCA LEXIS 275 (November 13, 2019), the Civilian Board of Contract Appeals rejected the concept of “near critical delay” as a means of determining concurrent delay. The Board held that the only manageable way to address concurrent delay is to determine if an activity actually impacted the critical path:
We reject the agency's contention that all of the agency-caused delay was offset by concurrent, contractor-caused delay. We recognize that "the exact definition of concurrent delay is not readily apparent from its use in contract law." George Sollitt Construction Co. v. United States, 64 Fed. Cl. 229, 238 n.8 (2005). We do not doubt that the agency's expert relied on one possible definition in opining that "near-critical" work in the shower room was "concurrent" with the modification 1 work until April 2014 and would have delayed the project if modification #1 had not. The problem we see with that approach is that the alternative delay did not materialize. To analyze delay claims in a manageable fashion, we focus on the fact that "only construction work on the critical path ha[s] an impact upon the time in which the project is completed. Mega Construction Co. v. United States, 29 Fed. Cl. 396,425(1993) The parties agree that the shower room repairs were not critical after August 2012. That work thus did not result in delay. We limit our analysis to the critical path delay that happened.
Based on the above case, concurrent delay could only occur if two delays activities are on the critical path at the same time. Thus, in order to have concurrent delay, there must be two activities on the critical path with the same days of negative float. This is technical approach reduces the occurrence of concurrent delay and represents a logical attack to a government claim of concurrent delay.
If you have a delay claim and looking for an attorney who understands CPM analysis, you have come to the right place. Feel free to call us.
