Concurrency claims in construction are among the most complex and contentious issues that project managers, project control professionals, and legal teams face. These claims arise when delays from multiple sources—both contractor and employer-related—occur simultaneously, impacting the project's timeline. When contracts lack clear clauses addressing concurrency, disputes can escalate, leading to prolonged negotiations, financial risks, and even legal battles.
Many construction contracts do not explicitly define concurrency or how it should be assessed. Without clear contractual guidance, stakeholders must rely on interpretations from legal precedents, industry best practices, and expert opinions, which may vary significantly. The absence of a predefined framework creates several challenges:
- Ambiguity in Delay Attribution – When a project experiences concurrent delays, determining the responsibility for each delay event becomes difficult. Contractors may argue that employer-caused delays justify extensions of time (EOT), while employers may counter that contractor-related delays prevent entitlement to relief. The lack of contractual clarity often leads to disputes over liability and compensation.
- Divergent Legal Interpretations – Different jurisdictions adopt varying approaches to concurrency. Some legal systems follow the "dominant cause" principle, giving weight to the most significant delay event, while others apply the "apportionment" approach, distributing responsibility between parties. Without a contractual definition, parties may struggle to agree on which methodology to apply.
- Impact on Time and Cost Claims – Contractors typically seek EOTs and compensation for delays caused by employers. If the contract does not define how concurrency affects these claims, it can lead to inconsistencies in dispute resolution, with arbiters or courts making subjective rulings based on available evidence and expert testimonies.
- Increased Risk of Disputes – The absence of clear clauses can result in costly and time-consuming legal disputes. Both contractors and employers may engage in prolonged negotiations or arbitration, delaying project completion and inflating overall costs.
To mitigate the risks associated with concurrency claims, construction contracts should include precise clauses defining how concurrent delays will be assessed and resolved. Key best practices include:
- Define Concurrency Clearly – Contracts should include a well-articulated definition of concurrent delay, specifying whether it applies only when both delays have equal impact or when they overlap in any way.
- Establish a Methodology for Assessment – Contracts should specify whether the "dominant cause" or "apportionment" approach will be used to assess concurrency claims.
- Set Guidelines for Entitlements – Clearly outline how concurrent delays affect EOTs, cost compensation, and liquidated damages to ensure both parties understand their rights and obligations.
- Include a Dispute Resolution Mechanism – A structured approach to resolving concurrency claims, such as expert determination or dispute resolution boards, can help avoid litigation.
- Document Delays Rigorously – Even in the absence of clear contractual clauses, maintaining comprehensive records of project activities, communications, and scheduling updates is crucial for substantiating claims.
Concurrency claims can become a major source of conflict in construction projects, particularly when contracts lack provisions addressing them. By proactively defining concurrency and its implications within the contract, project stakeholders can reduce uncertainty, streamline dispute resolution, and ensure fair allocation of risk and responsibility. Incorporating well-drafted concurrency clauses is not just a best practice—it is a necessity for efficient project management and successful contractual relationships.