FIDIC / Legal Reference: SCL Protocol 2nd Edition Guidance
A situation where two or more delay events, attributable to different parties, affect the critical path at the same time. Concurrent delay is one of the most contested analytical issues in construction delay claims — no single universal rule governs its treatment.
What it means in practice
True concurrent delay exists where both an employer-risk event and a contractor-risk event independently affect the critical path during the same period. The SCL Protocol (2nd Edition, 2017) recommends that where true concurrent delay exists, the contractor should be entitled to an extension of time but not to prolongation costs.
Different jurisdictions take different approaches. English courts have moved towards a ‘malmaison approach’ under which the contractor receives an EOT for the concurrent period even where its own cause of delay is also present. The approach in UAE-seated arbitration is determined case by case, drawing on contractual terms and expert delay evidence.
Where disputes arise
Concurrent delay arguments are deployed by employers to defeat EOT claims and by contractors to resist Delay Damages claims. Tribunals are increasingly sceptical of global or impressionistic delay analyses and require granular, activity-by-activity critical path evidence.
UAE Context
In UAE infrastructure projects, concurrent delay frequently arises from the interplay of employer-caused NOC delays and contractor-caused design or procurement delays. Disentangling the two requires sophisticated windows analysis or time impact analysis methodology.
Related terms
Concurrent delay analysis requires specialist programme expertise and expert witness experience. e-Basel provides independent delay analysis and expert witness services for UAE construction arbitrations.
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