You may delay, but time will not, and lost time is never found again.”
Construction Delay Terminology
Construction, delay could be defined as the time overrun either beyond completion date specified in a contract or beyond the date that the parties agreed upon for delivery of a project. … So, choosing an appropriate delay analysis method is an important part of construction industry.
Critical vs. Non-Critical
This is the first and most important question to answer: Was the delay critical or non-critical?
A critical delay is one that will affect the project completion date (or some other important milestone date on a project). Critical delays can’t really be made up – they just tack on extra time. Non-critical delays will affect the completion of specific activities, but not the completion date or the date of some important milestone.
The determining factor is whether the delay extends the Critical Path Method (CPM) of the project. A CPM schedule will set out a timeline of the most extended activities throughout the project. It will establish the minimum amount of time it will take to complete these “critical” activities.
These critical activities need to be performed at specific times and in a particular order to allow the next critical phase to begin. If the delay has no effect on the project’s critical path, then the delay is non-critical and may involve a simple change order to correct the delay.
Excusable vs. Inexcusable
Once you have determined if the delay is critical or not, you will need to establish whether the delay is an excusable one. An excusable delay is one that allows the contractor an extension of time, compensation, or both. Why? Because these delays are out of the contractor’s control.
The common excusable delays should be outlined in your contract. The most natural example of excusable delays is when a delay falls under a force majeure clause – events such as natural disasters or terrorist attacks. Excusable delays can also result from errors or omissions in the plans or even simple issues that were caused by the client.
Inexcusable delays are those where the contractor was entirely responsible for extending the project’s duration. If this is the case, then the contractor will be liable for any costs or damages caused by the delay. This can be a result of delayed mobilization, late submissions, failure to obtain permitting (if they are responsible for it), or general poor planning on behalf of the contractor.
Compensable vs. Non-Compensable Delays
Lastly, is the delay a compensable one? When a delay is “compensable,” that means the party affected by the delay should be given either an extension of time or compensation for the delay of their work.
All excusable delays are compensable. Meaning, any time a delay is considered “excusable,” the contractor will generally have a claim for a time extension, compensation, or both! If the contractor is solely at fault, the delay will highly likely be non-compensable. Non-compensable delays can fall under any of the other categories, depending on the situation and contract terms.
Concurrent Delay
What is concurrent delay?
Assessing concurrent delay in relation to extensions of time and delay damages is often a problematic and complicated issue. Not only is it necessary to identify the causes of delay but depending on the terms of the contract and/or the jurisdiction (and hence the applicable law), it may also be necessary to apportion liability when there has been contribution to the delay by both the employer and the contractor.
At the same time, neutral events, such as force majeure and parallel critical paths, together with contractor acceleration and/or mitigation measures may need to be considered. The preferred approach for assessing extensions of time and delay damages where there is concurrent delay is uncertain. This is partly attributable to the uncertainty and confusion as to how concurrent delay is defined and categorised in construction contracts.
The standard form contracts differ in their apportionment of risk and in defining what concurrent delay actually is.