Concurrent Delays as a Defense
The term “concurrent delay” is frequently raised as a defense to a claim for additional time and delay damages. It is a contentious subject because there is no universal definition of concurrent delay, no established method for determining concurrent delay, and little guidance on the assessment of damages. In this article, I examine some of the controversial issues and difficulties faced by the courts regarding concurrent delays.
Concurrent delays are typically contended by an owner as a defense to a contractor’s claim for additional time and related damages. Owners argue that either the delay was caused by non-excusable events (i.e., events that would not entitle the contractor to either additional time or additional money), or there were concurrent delays caused by non-excusable events and/or non-compensable events (i.e., events for which the contractor would receive additional time but no additional money). The first is a complete defense to the contractor’s claim for time and money. The second is a partial defense to defeat or diminish the claim for damages.