The concept of “concurrent delay” is straightforward. A contractor cannot recover for suspended or delayed work caused by the project owner if the contractor would have otherwise been unable to perform during the period in question. In effect, the owner-caused delay is cancelled out by the contractor-caused delay.
A recent federal contracting case provides a good example of concurrent delay. After contract award, there was owner confusion regarding the need and responsibility for relocating an existing sewer line. Work was suspended for a month, arguably, while the contractor awaited instructions.
During this period, however, the contractor had problems of its own. The contractor was not capable of performing the contractual scope of work with its own forces. And, the contractor lacked contractual commitments from qualified trade contractors needed to perform the work. Any delay was concurrent. The contractor could not recover its increased costs.
Contractors sometimes argue that this doctrine is unfair – the project owner was more at fault than the contractor, so recovery should not be barred altogether. Occasionally, the facts make it possible to allocate responsibility for discrete portions of the delay. However, concurrent delay usually is a complete bar to recovery. Your comments are welcomed.
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