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By TBH Director, Aytug Ozkan
This article was first published in the February 2025 issue of Construction Week Middle East.
Concurrent delay is considered the most contentious technical subject in forensic delay analysis. The challenges in addressing concurrent delays often lead employers and contractors to take positions that aim to maximize their entitlement, sometimes without fully understanding the broader implications or technical details.
Current industry practice is, in several respects, inconsistent, as the parties involved in nearly every delay dispute seem to have differing views as to which delays are concurrent and how any such concurrent delays should impact the outcome of the dispute.
AACE International’s Recommended Practice No. 29R-03 on Forensic Schedule Analysis and the Society of Construction Law’s Delay and Disruption Protocol both provide guidance on applying the critical path method (CPM) to assess schedule delay. While these protocols offer valuable procedures for delay analysis, their effectiveness in addressing concurrent delay challenges remains uncertain.
Delay analysts face four key challenges when presenting a concurrent delay analysis. Each of these must be navigated carefully to ensure fair and accurate delay attribution:
1. Adopting a Global View
In many cases, delay analysts evaluate concurrency from a global perspective, however, this approach has limitations.
A global perspective on concurrency involves examining the entire project timeline to identify and assess concurrent delays, rather than focusing on specific time windows or individual delay events. In such analyses, delays are not apportioned, even when they clearly appear to be sequential rather than concurrent. Instead, both parties are deemed jointly responsible for delaying the entire project concurrently, resulting in neither party being awarded delay damages. This often occurs in situations where each party independently caused delays to different activities that collectively extended the project’s completion date. Analysts frequently contend that the delays across the project were so closely linked that they were jointly and concurrently caused by both parties.
However, analysts should be aware of limitations to this approach and exercise caution. By simplifying the complexities of delay issues—without examining detailed project records and allocating specific delays to individual events—the analysis may not withstand scrutiny in a formal dispute setting.
2. The Party Seeking to Apportion Delays Fails to Meet Its Burden of Proof
A second significant challenge arises from the high standard of proof required from a party seeking delay damages (the employer). This can be particularly tricky in complex construction projects where multiple factors may contribute to delays.
In many cases, contractor’s delay claims are denied due to concurrent delays. However, the party asserting delay damages (the employer) fails to meet its burden of clearly apportioning concurrent delays. Put simply, employers frequently request contractors to provide a concurrency analysis, placing the burden of proof on contractors. Although this practice may appear routine, it can undermine the employer’s position in a formal dispute setting.
3. Adopting a Narrow View of the Critical Path in Relation to Concurrency
Whether to adopt the broad or narrow view of concurrency presents a dilemma for some delay analysts.
Certain analysts often adopt a narrow view of concurrency and the critical path, failing to account for the broader implications of project delays. This limited perspective overlooks the potential impact of delays to near-critical activities, as well as those occurring on co-critical paths or simultaneously across multiple paths.
Such an approach can lead to incomplete and potentially misleading analyses, as it disregards how most delays have the potential of becoming co-critical, once the float on the path it resides in has been consumed.
As such, “near-critical” paths must be analysed for delay because these paths have the greatest potential of becoming concurrent delays if they become critical after the relative float against the critical path delay has been consumed. These paths can quickly transition to critical status, impacting project timelines and creating concurrent delay situations.
There are several decisions, however, that would seem to indicate an aversion to analyse “near-critical” delays for potential concurrency.
This aversion seems to stem from a preference for simplicity in delay analysis or a strict interpretation of critical path concepts. However, a reluctance to consider near-critical paths can result in an incomplete understanding of concurrent delays.
4. “Prospective” Versus “Retrospective”
Two commonly used methods for delay analysis are “Retrospective Delay Analysis” and “Prospective Delay Analysis.” The challenge for delay analysts is deciding which approach to choose. Ultimately, the selection between hindsight and blind-sight approaches requires careful consideration of project specifics, available documentation, and the intended use of the analysis – especially when the as-built data conflicts with the contemporaneous schedule data used by the parties in managing the work. The hindsight approach involves a retrospective analysis that incorporates actual project events, while the blind-sight approach relies on a prospective analysis, evaluating concurrency based on the anticipated impact of a delay event at the time it occurred.
Proponents of the hindsight approach argue that disregarding the most accurate evidence and recreating updates as if the as-built information does not exist serves little purpose. In contrast, blind-sight advocates contend that reconstructing schedule updates to reflect state of mind of the project parties at the time of the delay is crucial since project decisions were based on the best available information during the project.
Ultimately, analysts should always remember that the choice between methodologies can impact the conclusions drawn from the analysis. Analysts must therefore carefully evaluate both the strengths and limitations of each approach and select the one that best aligns with the case’s specific circumstances. In doing so, they will enhance the credibility and reliability of their analysis in dispute resolution.
Conclusion
Delay analysis is not easy. Regardless of the methodology selected, disputes over concurrency can still arise due to the inherent complexities presented above. The key to a successful outcome lies in an analysts’ awareness and proactive management of these challenges and the ability to tailor their approaches to address, to the extent possible, the concerns with respect to the identification and apportionment of concurrent delays.
About Aytug Ozkan
Aytug Ozkan is a Delay and Disruption Expert with over 15 years’ experience. A Civil Engineer, Aytug has been in the Middle East since 2007 where he joined TBH in 2010 to work primarily in planning, project management and dispute resolution. He is a trusted advisor who regularly prepares, defends and negotiates delay, acceleration, disruption and cost claims. His international project experience spans mega and giga and smaller scale projects in several sectors.