Concurrent Delay
Two parties delaying the same project at the same time.
Quick Answer
Concurrent delay occurs when two or more independent delays, one the owner's responsibility and one the contractor's, affect the project's completion during the same period. Because both parties contributed, the usual outcome in US practice is a time extension without delay damages, and no liquidated damages for that period, unless the contract says otherwise.
The Full Picture
Concurrent delay exists as a concept because real projects rarely have a single cause of lateness. The owner may be late approving submittals while the contractor is short on crews. If either delay alone would have pushed completion, it is unfair to make one party bear the full consequence. Concurrency rules decide how responsibility is shared.
Mechanically, concurrency is judged on the critical path. Both delays must affect completion, not just activities with float, and they must overlap in time. A common working rule in US construction is that the contractor receives a time extension, so the owner cannot assess liquidated damages for the concurrent period, but the contractor does not recover its delay costs either. Some contracts and courts apportion delay more precisely when the evidence allows the effects to be separated.
In practice, concurrency is one of the most disputed issues in delay claims. Definitions differ: some analysts require the delays to occur at literally the same time, while others look at their effect on completion within the same analysis window. AACE International's forensic schedule analysis guidance and the Society of Construction Law's Delay and Disruption Protocol both discuss concurrency, and the contract's own definition, if any, controls.
In preconstruction, the key decisions are contractual and procedural. A contract can define concurrent delay, set how it is apportioned, and specify the analysis method. A GC reviewing the contract before signing should look for concurrency language alongside liquidated damages, notice requirements, and no-damage-for-delay clauses, because together they determine how much exposure the contractor carries.
Real Examples
Common Misconceptions
People assume: Two delays that happen in the same month are automatically concurrent.
Actually: Concurrency requires both delays to affect the critical path and project completion. If one delay only consumed float, it wasn't concurrent in the legal sense, and the other party's delay may be the sole cause of lateness.
People assume: Concurrent delay always means neither side gets anything.
Actually: The common outcome is time without money, which is valuable to a contractor facing liquidated damages. Some contracts and jurisdictions apportion costs between the parties, so the result depends heavily on contract language and evidence.
Frequently Asked Questions
How is concurrent delay usually resolved?
In US practice the typical result is a non-compensable time extension: the contractor gets more time and avoids liquidated damages for the concurrent period, but neither party recovers delay damages from the other. Contracts can change this rule.
How do you prove concurrent delay?
Through schedule delay analysis, usually a windows or time impact analysis, showing that independent owner and contractor delays each affected the critical path and project completion during the same period, supported by schedule updates and daily records.
What's the difference between concurrent delay and pacing?
Pacing occurs when one party deliberately slows its work because the other party's delay has already pushed completion. Pacing is a response to a delay, not an independent cause, so it is generally not treated as concurrent delay if properly documented.
Can a contract define concurrent delay?
Yes. Contracts can define what counts as concurrent delay, how it is apportioned, and which analysis method applies. Reviewing and negotiating that language in preconstruction avoids arguing over definitions after a dispute begins.