Delav Analvsis with Respect to Concurrent Delavs What is a Delay?

ln Construction lndustry, "Delay" means the incident which some part of the project has been extended beyond what was originally planned due to unexpected situations. lt will affect the
perfoi'mance of a particular project activity, with or without affecting the project completion.
These delays not only increase the time period to perform the work but may also increase the cost

for many of'the parties involved. This will vary by the causes for the delay.
Delay may be caused by the one or more of the following parties;

Owner and his team

o, : :t f) :\"'{o Types of Delays

Delays can be categorized into

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(i.e. cause *:ll_!&tvoel ,a/ L" ; ri, {.1"i.-" l.--Nature o Societyjhrough some changes in statutes, by laws, etc or thrdugh its impact of socio,? politicdl nature

four major types.

o . o

Excusable or Non-Excusable

Compensable or Non-Compensable

Critical or Non-Critical

Excusable or Non-Excusable Delays

Excusable Delavs

These delays are beyond the control and without the fault or negligence of the contractor and also they are unforeseeable. Common excusable delays for a contractor include design problems,

unanticipated weather, acts of God, differing site conditions, variations, material limitations, delays in approvals and etc. For these delays contractor shall have the right to claim extension of time and

potential financial entitlement depending on contractual clrcumstances.

Non-Excusable Delays

These delays are foreseeable and within the contractor's control. Here contractor shall have no right to claim neither extension of time nor financial entitlement. This also called as "culpable delays". This includes mismanagement, insufficient labour, plant and equipment, delays in shop drawing submissions and etc. The contractor shall be liable for the damages resulting from late completion as stipulated under the contract, or he shall pay for acceleration damages to make up the lost time to the client.

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Compansable or Non-Compensable Delays

Excusable delays further can be divided into two categories as compensable and non compensable
delays.

Compensable Delavs

direct and Compensable delay means, contractor is entitled financial recovery in the form of and indirect time related costs arising from the client's fault. lf the delay is an excusable and cost i.e' compensahfi d.lry, then the contractor is entitled to the both extension of time approvals and overhead and profit. Causes for this delay can be design changes, variations, delay in etc. However it is possible for a delay to be compensable without extending the agreed
construction Period.
Non-Compensable Delavs
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and he Non-Compensable Delays are the delays which the contractor is entitled to a time extension

acts of is not entitled to any additional monetary compensation. This delays mainly borne by the also unforeseeable. God, riots, strikes and etc which are beyond the control of the both parties and entitled But the original construction period to be extended and then the contractor automatically

to the extension of time.

Critical or Non-Critical DelaYs
"'-.,CritiCat

of any activity on a ffitical path which"c'a,uses''to:t'tne, is not in delay to overall project completion. Non-critical delay means a delay of an activity which
Celays mean,the,-'ddlaysironiprogress

the critical path.

Concurrent DelaYs
path on a concurrent delays are generally defined as parallel and independent delays to the critical risk project during the same time period. When there is a concurrent delay and one is an employer event and other one is contractor risk event, then generally contractor is entitled to the extension of time. Summarv
Tvoe of event
Excusable
ERE

CRE

Both ERE and CRE

a

a a

Non-Excusable Compensable Non-Compensable

a

ERE

Employer Risk Element

CRE

- Contractor

Risk Element

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Concurrent Delay Analysis

There are two parts to delay analysis by reviewing the effect on progress sustained by a delay event and they are as follows;

. .

assessment of the time extension. assessment of the financial compensation.

the normal when there are concurrent delay events. lf it is so, first have to identify the occurrence of the delays from as-built data and from that analyst can
Delay analysis will vary from

understand whether the delays have affected the existing completion date and the liability for each
delay.

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There are number of alternative methods to analyze the concurrent delays. Selection of the appropriate method will be based upon the contract conditions, prevailing case laws, preference of the analyst and the nature of the concurrent delay. Concurrent delay analysis methods are as
follows;

o o o o

Dorninant Cause Approach

But For Test First Past the Post Common Sense Test

Dom inant Cause Approach Where there are two causes of delay, one is from the contractor and the other one is from the employer, the party who can convince will succeed, that the cause for which the other party is responsible, is the effective dominant cause.

Case Law H Foirweother & Compony Ltd vs. London Borough of Wondsworth

delayatthe outset by reason of variations and late instructions entitled him to an extension of time. Thereafter a strike occurred which caused a further 81 delay. The Contractor's case was that the delay caused by the strike was ignored by the /weekj ',s*4-,' delay caused by the Employer. The arbitrator rejected the Contractor's case on that point, holding that the strike was the dominant caus_e. Judge allowed the Contractor's appeal and remitted the 4. relevant part of th( award,'tolthe arbitrator. j 1_Here, the Contractor had suffered a
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.

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But For Test

for" test is another major approach to concurrent delay analysis. lt is very popular due to its simplicity and it is also known as "collapsed as-built schedule method". Under this method, take the as-built schedule and identify the impacts of delays caused by contractor and employer and
The "but

then removes one party responsible delay causes. Then consider the possibility to the delay being contractor responsible or employer responsible. Then do the vise-versa.
Anatysis Process for the "but-for" technique
A

As-built schedule

Determining
_;

Owne/s view

analysis view

Contractor's view

point
Removi ng inexcusable delay

Removing excusable delay from

from the as-built schedule

the as-built schedule

schedule without delay

a schedule without delay

caused by contractor

caused by owner

No

compensable delay for

owner

Delay caused by

contractor

Example

There are two concurrent delay events as labour shortage from the contractor for one week and
adverse climatic condition in the same week. Then the original completion date will be extended by one week due to above both causes. The delay can be analyzed by using the "but for test". First remove the shortage of labour and see the effect. Then the work will be delayed even by the adverse weather condition. When the adverse weather condition remoVed, then also the work will

be delayed by the labour shortage. The removal of either event from the circumstances leads to the conclusion that the delay would still have occurred. Both events independently have caused the same delay, the extra wee(1???????????????-i'\
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First Past the Post Method

The term "first past the post" came into practice as where the winner of a race is the first to pass
a

particular point on the track. This approach is based on the logic that where delays are in parallel, the cause of delay that occurs first in terms of time will be used first to evaluate the impact on delay to the existing time for completion. Other causes of delay will be ignored and when the other cause of delay will continue on after the first cause also then the later part of the second delay will be used with the first delay to calculate the extension of time.
The mairr weakness of this approach is that it does not provide solutions for a situation where all the delays begin at the same time.
Example

.]

ffi ffi
Scenario
1

EventA
EventB
Scenario 2

Event A
I

K-_} r?i

Event B'

ln the scenario L, Event A is the first occurred event and it is the one which used to evaluate the extension of time. Event B will be ignored.
ln the scenario 2, again Event A is the first event which uses to evaluate. When consider the Event

B', it is continuing after the first cause finish and then "a" part only will be considered with the first Event A to evaluate the extension of time.

Common Sense Test

As the construction claims are unique, courts are likely

to rely on the factual issue of causation by applying common sense to the facts of each particular case. ln this test, common sense of the experts who are involved in analyzing claims is used to analyze the construction delay claims. Experience of those experts is very important to achieve accurate solutions at the end of the delay

analysis for a particular event.

But this method is not good as far as it seems to be, because two experts may think in different angles for a same problem and as a result of that they may give entirely different solutions to a
same problem.

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Case Laws

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Ltd vs. commonweatth (lgg2) cose. Here the Employer caused delay of 5 Days commencing on day 15 means that a contractor would have completed which the works on day 20, sti, hr, ; ;;, work to do. And arso there is a neutral delay on day 23' lt was decided that no difficurty in concruding that the time based on day 23 were caused costs incurred by the original delay. rhe decision is an extension of time craimed by the .i" r,rr period or o oays, even though thar day 23is the second

Thiess wotkins white construction

Armstrong Construction vs. councir of the shire of cook (Lss4) case. ln this case' contiactor initially encountered a delay caused by latent condition delay due to wet weather and thereafter a which is a neutral deray. rt is considered that the contractor was entitred delav and disruption arising from the first detay event ;; but not for the caused

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ffI,Iff,:1:[i:,:::,..:,,?,,,:dges

have used the common sense test and given opposite

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