Construction Industry

Delays in construction and infrastructure projects are almost an inevitability. But what happens when multiple delays hit at once, and some are the client’s fault while others lie with the contractor? This is the tricky terrain of concurrent delay, a concept that can lead to significant disputes over extensions of time and financial compensation.

The Society of Construction Law (SCL) Delay and Disruption Protocol (2nd Edition, 2017) stands as a beacon of guidance in this often-murky area. While not a legally binding document in itself, it’s widely respected and often referenced by courts and tribunals as best practice for resolving delay and disruption claims.

Let’s dive deep into what the SCL Protocol says about concurrent delay, particularly when the employer is a contributing factor, and how this impacts a contractor’s entitlements.

What is Concurrent Delay, Really? The SCL’s Refined View

Before the SCL Protocol, “concurrent delay” was a term thrown around with varying interpretations. The Protocol, however, offers a much-needed clarification, distinguishing between “true” concurrency and delays with “concurrent effects.” This distinction is crucial for understanding entitlements.

• True Concurrent Delay (Rare Beast!): Imagine two separate, independent events. Event A is an Employer Risk Event – perhaps the client failed to provide approved drawings on time. Event B is a Contractor Risk Event – the contractor suffered a major equipment breakdown. If both of these events occur simultaneously and each independently causes delay to the critical path of the project, then you have true concurrent delay. The SCL Protocol acknowledges this as genuinely rare. Why? Because in most projects, delays tend to have ripple effects rather than perfectly synchronized, independent origins.
  • External Perspective (FIDIC): While the SCL Protocol offers a detailed definition, it’s worth noting that international contract forms like FIDIC (Fédération Internationale Des Ingénieurs-Conseils) often deal with concurrent delay through a “but for” test – essentially asking if the contractor would have been delayed anyway by their own events, even without the employer’s delay. This can sometimes lead to different outcomes than the SCL’s approach.
• Delays with Concurrent Effects (The Common Scenario): This is where most “concurrent delay” scenarios actually fall. Here, an Employer Risk Event might happen, and then later, a Contractor Risk Event occurs, or vice-versa. However, at some point, their effects on the critical path overlap. The key here is that both events, irrespective of their start dates, become critical path delays during the same period.
  • Example: The employer delays providing access to a work area for two weeks (Employer Risk). Later, due to poor planning, the contractor runs into a labor shortage for three weeks, impacting the same critical path activities that were already pushed back by the access delay (Contractor Risk). For a period, both delays effectively impact the same critical path.

The SCL Protocol emphasizes that for a delay to be truly “concurrent” or have “concurrent effects” in a way that impacts entitlements, both delay events must be on the critical path to completion. A delay to a non-critical activity, even if occurring at the same time as a critical path employer delay, does not constitute concurrency in the context of EOT or loss and expense.

Entitlements in the Face of Concurrent Employer Delay: Time and Money

This is where the rubber meets the road. How do you allocate responsibility and adjust the contract when the employer is a cause of delay during a period of concurrency? The SCL Protocol offers clear guidance, treating extensions of time (EOT) and financial compensation (loss and expense) differently.

1. Entitlement to Extension of Time (EOT): The “Prevention Principle” Reigns Supreme

 

When an Employer Delay to Completion occurs concurrently with a Contractor Delay to Completion, the SCL Protocol generally advocates for the contractor to receive a full Extension of Time for the entire period of the Employer Delay.

• The Rationale: The Prevention Principle. This principle, a cornerstone of English contract law, dictates that an employer cannot benefit from their own breach of contract or act of prevention. If the employer’s actions (or inactions) contribute to the project being delayed, they cannot then hold the contractor liable for not finishing on time.
• No Apportionment for EOT: Crucially, the SCL Protocol states that the contractor’s own concurrent delay should not reduce the amount of EOT granted for the employer-caused delay. If the employer caused a critical delay, the contractor gets that time back, irrespective of their own concurrent delay.
  • Clarification (Scottish Law): While the SCL Protocol is broadly accepted in the UK, it’s worth noting that in Scottish law, the “apportionment” approach (where EOT might be split if delays are truly concurrent) has sometimes been favored by courts. This highlights the importance of the governing law of the contract. However, the SCL Protocol’s strength lies in its practical, common-sense approach to fairness.
• Practical Impact: This means if a project is delayed by 30 days due to the employer’s late design information, and during those 30 days, the contractor also experiences a 15-day delay due to their own poor planning on a critical path activity, the contractor would still likely receive a 30-day EOT. The employer’s delay set back the contractual completion date by 30 days, and the contractor should not be penalized for that.

2. Entitlement to Compensation (Loss and Expense): The Cost Conundrum

While the SCL Protocol is generous with EOT during concurrent delay caused by the employer, it takes a more stringent approach to financial compensation (prolongation costs, or “loss and expense”).

• No Automatic Compensation: The Protocol advises that the contractor is not automatically entitled to recover additional costs during a period of concurrent delay where both employer and contractor delays are critical.
• The Burden of Proof: For compensation, the contractor must demonstrate that they incurred additional costs solely due to the Employer Delay that they would not have incurred anyway due to their own concurrent delay.
• Separating Costs: This often requires the contractor to meticulously separate and prove which costs were directly caused by the employer’s delay. If the contractor would have incurred certain overheads or site establishment costs anyway because their own delay would have kept them on site for that period, then they cannot claim those specific costs from the employer.
  • Example: Following the previous example (30-day employer delay, 15-day contractor delay within that period), the contractor gets a 30-day EOT. However, for loss and expense, they would need to prove which, if any, of their additional site overheads or prolongation costs were exclusively due to the employer’s 30-day delay, and not to the 15-day period where their own delay would have kept them on site regardless. This can be incredibly difficult to prove in practice.
• Why the Difference? The rationale is that while the employer should not prevent the contractor from completing on time (hence the EOT), the employer also shouldn’t pay for the contractor’s inefficiency or delays that would have occurred regardless.

Beyond the Definitions: Practical Application and Best Practices

 

The SCL Protocol isn’t just about definitions; it’s about practical application. Here are some key takeaways for all parties involved:

1. Contemporaneous Records are King: The ability to prove delay and its causes hinges entirely on excellent, up-to-date project records. Daily diaries, meeting minutes, progress photographs, resource allocation sheets, and updated programmes are invaluable.
2. Regular Programme Updates: A well-maintained and regularly updated project programme (or schedule) is critical. It allows for a clear, contemporaneous assessment of the critical path and how various events are impacting it.
3. Proactive Communication: Early identification and communication of potential delays, whether by the employer or the contractor, can help mitigate their impact and facilitate resolution.
4. Expert Delay Analysis: In complex cases, engaging a specialist delay analyst who understands the SCL Protocol and various methodologies is often essential. They can conduct a forensic analysis of the project programme and records to determine causality and concurrency.
5. Contractual Clarity: While the SCL Protocol provides guidance, the contract itself remains paramount. Parties can choose to adopt alternative approaches to concurrent delay within their contract clauses. Always refer to the specific terms of your agreement.

Conclusion

 

The SCL Delay and Disruption Protocol provides a clear, rational, and widely accepted framework for navigating the treacherous waters of concurrent delay. By distinguishing between true concurrency and delays with concurrent effects, and by taking a nuanced approach to EOT versus financial compensation, it aims to achieve a fair outcome that respects the prevention principle while also holding contractors accountable for their own performance.

Understanding and applying the SCL Protocol’s principles can significantly reduce disputes, foster clearer communication, and ultimately contribute to the successful delivery of construction projects, even when the inevitable delays occur.

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