Concurrent Delays: A Commentary for Planning and Cost Managers

Iain Wishart's 1996 paper, "Concurrent Delays," presented to the Society of Construction Law (SCL) in London, tackles a prevalent and often misunderstood challenge in construction projects: concurrent delays. This commentary aims to provide a comprehensive overview of the paper's key insights, focusing on their relevance to planning and cost managers.

The Problem of Concurrent Delays

Wishart highlights the pervasive nature of concurrent delays, where both the contractor and the owner contribute to delays in a project. This situation is more common than not, yet often disregarded in analysis, leading to complications in extending time, calculating losses, and managing expenses. The core issue is often not about time, but about money.

He emphasizes the importance of understanding the underlying financial implications. Contractors tend to seek more money due to delay, and the potential for substantial costs related to extensions, disruptions, or accelerations further complicates the situation. This economic pressure fuels the prevalence of claims, making it vital for planning and cost managers to navigate this territory with clarity and precision.

The Need for Clarity and Practicality

The paper highlights a critical lack of clarity and consistent approach to dealing with concurrent delays in existing contracts. Wishart critiques existing legal approaches and theories like the Devlin approach, the dominant cause approach, and the burden of proof approach, concluding that they often result in an "all-or-nothing" outcome, leaving one party in a better position than they should be while potentially disadvantaging the other. This lack of fairness and ambiguity creates a significant challenge for planning and cost managers.

The Importance of Contractual Clarity

Wishart argues that relying on contractual provisions for clarity is essential. He emphasizes the importance of clear definitions, specific requirements for notification, and detailed processes for identifying, documenting, and evaluating the impact of concurrent delays. This contractual clarity is fundamental for minimizing potential disputes and facilitating a fair and transparent approach to handling concurrent delay situations.

The "Made Whole" Principle and Practical Application

While recognizing the complexity of the issue, Wishart advocates for adopting the "made whole" principle in concurrent delay situations. This principle calls for placing the contractor back into the same position they would have been in had the delay not occurred. He emphasizes that this approach, while seemingly straightforward, requires meticulous planning and analysis. Wishart provides a real-world example involving a house construction project to illustrate how to apply the "made whole" principle in practice. This real-world example demonstrates the complexity of identifying and allocating responsibility for different delays and underscores the importance of accurate time analysis, careful assessment of the impact of each delay, and meticulous documentation to support any claims or requests for extensions.

The US Approach and Its Potential Relevance

The paper explores the US approach to concurrent delays, where the "no-win" rule often applies. Under this rule, neither party can recover damages when both contribute to the delay, effectively forcing them to accept the consequences. Wishart acknowledges the potential for fairness in this approach, as it prevents one party from unfairly benefiting at the expense of the other. He suggests that adopting a similar approach in the UK could potentially bring greater fairness and clarity to the resolution of concurrent delay situations.

Practical Guidance for Planning and Cost Managers

Here are some practical takeaways for planning and cost managers based on the paper:

• Proactive Planning: Prioritize early identification of potential concurrent delays, focusing on risk assessment, mitigation strategies, and robust contingency planning.
• Contractual Review: Thoroughly review contracts, emphasizing clarity on definitions of concurrent delays, notification requirements, and processes for assessing and allocating responsibility.
• Accurate Time Analysis: Develop a comprehensive and meticulous system for analyzing delays, ensuring that all delays are properly documented, categorized, and assessed for their impact on the project timeline.
• Collaborative Communication: Foster open communication and collaboration with all stakeholders, including owners, contractors, and subcontractors, to proactively address and resolve potential concurrent delay situations.
• Documentation: Maintain detailed and contemporaneous records of all communication, decisions, actions, and events related to concurrent delays. This documentation is critical for supporting claims, justifying extensions, and resolving disputes.

Challenges and Future Considerations

While Wishart's paper provides valuable insights, several challenges and areas for further exploration remain:

• The "Made Whole" Principle in Practice: The practical application of the "made whole" principle in complex projects needs further refinement, especially regarding the allocation of costs when delays are caused by both parties.
• Contractual Harmonization: Developing standardized contractual provisions for handling concurrent delays is essential to foster greater consistency and reduce ambiguity in the industry.
• Global Perspectives: Exploring the approaches to concurrent delays adopted in different jurisdictions and international contracts can provide a more holistic understanding of this complex issue.

Conclusion: A Call to Action for the Construction Industry

Wishart's paper serves as a timely reminder that the issue of concurrent delays is complex and needs a more systematic, transparent, and fair approach. By adopting a proactive approach to planning, carefully reviewing contracts, and embracing open communication, planning and cost managers can effectively navigate this complex territory, minimizing disputes and ensuring a more equitable and predictable construction environment.