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ENGINEERING

January 20

THE JOURNAL OF AACE INTERNATIONAL -THE AUTHORITY FOR TOTAL COST MANAGEMENT

TM

COSTCOSTCOST

OFFSETTING DELAYS

THE OWNERS FRIEND

FORENSIC

SCHEDULE ANALYSIS:EXAMPLE IMPLEMENTATION PART II

CONSTRUCTIVE

ACCELERATION

THE BASICS OF

OFFSETTING DELAYS

THE OWNERS FRIEND

FORENSIC

SCHEDULE ANALYSIS:EXAMPLE IMPLEMENTATION PART II

CONSTRUCTIVE

ACCELERATION

THE BASICS OF

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3/64COST ENGINEERING JANUARY 2012

4 The Basics of Constructive AccelerationJames G. Zack Jr., CFCC FRICS

15 Offsetting Delays The Owners FriendJohn C. Livengood, CFCC PSP

25 Forensic Schedule Analysis:Example Implementation Part IIMark C. Sanders, PE CCE PSP

2 AACE Inernaional Board o Direcors

2 Cos Engineering Journal Inormaion

14 AACEs 2012 Annual Meeing

53 Ask Your Candidaes 2012 Elecion

55 Proessional Services Direcory

55 Index o Adverisers

58 The AACE Inernaional Online Sore

60 Calendar o Evens

CONTENTS

TECHNICAL ARTICLES

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6/644 COST ENGINEERING JANUARY 2012

The consrucive acceleraion

claim is a creaion o he US

Federal Boards o Conrac

Appeals (he Boards). Prior

o 1978, he Boards were only

empowered o hear claims arising under

a conrac. A claim no arising under a

conrac was ypically classiied as breach

o conrac, somehing he Boards couldno hear. As a resul all such claims had o

be aken o he US Cour o Claims.

The consrucive acceleraion claim

was devised prior o 1978, in order o

give jurisdicion o he US ederal agency

appeals board as a claim on he conrac

and no or is breach.[1] One English

barriser, Proessor Ian Duncan Wallace,

has ermed consrucive acceleraion as

a, iciious docrine no ounded on

consensual or quasi-conracual basis[2].

Regardless o his opinion, he docrine o

consrucive acceleraion is a well

recognized legal heory in he US.

The Basics o Consrucion Acceleraion

The earlies cases issued by he

Boards, in he 1960s, esablished a

sandard six poin es o deerminewheher consrucive acceleraion

occurred on a conrac [3]. Various

auhors have summarized hese

requiremens as ollows.

The conracor mus have

encounered excusable delay or

delay or which a ime exension is

warraned under he erms o he

conrac (wheher he delay is

compensable is irrelevan).

The conracor mus imely submi

noice in accordance wih he

provisions o he conrac and ollow

up wih a proper reques or ime

exension.

The ime exension mus be denied,

in whole or in par, or oherwise

posponed (i.e., no responded o a

all, which aer some reasonable

period o ime is deemed a denial).

The owner or heir represenaive

mus ac by coercion, direcion, or in

some oher manner ha can

reasonably be consrued as an order

o complee he work wihin he

unexended ime.

The conracor mus provide noice

ha hey consrue his acion o be a

direcive o accelerae. And,

The conracor mus acually

accelerae he work, incur and

documen heir added coss [4].

I is noed ha some auhors

condense hese poins o ive, our, or

even hree. Nowihsanding wheher

hey are compressed or no, his sandard

se o rules mees he basic consrucion

claims equaionenilemen, causaion,

and damages.

(For a more horough discussion o

he docrine o consrucive acceleraion

see Consrucive Acceleraion: Waking

TECHNICAL ARTICLE

THE BASICS OF

CONSTRUCTIVE

ACCELERATIONJames G. Zack Jr., CFCC FRICS

Absrac: Consrucive acceleraion is a well recognized claim in he US. The USederal governmens Boards o Conrac Appeals long ago creaed his claim andesablished he basic rules o enilemen concerning his ype o claim. Thus, US-based conracors know wha mus be documened in order o recover in suchsiuaions. Bu when US conracors are working ouside he US and are acedwih his sor o siuaion, can hey recover in arbiraion or liigaion in oher ju-risdicions? This aricle examines consrucive acceleraion in various legal juris-dicions (boh common law and civil law) around he world o deermine whehera conracor is able o use his ype o claim o recover damages. This aricle wasirs presened a he 2011 AACE Inernaional Annual Meeing as manuscripCDR.521.

Key Words: Arbiraion, claims, civil law, common law, conracors, damages, and

liigaion

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he Sleeping Gian by Thomas F. Peers

[5]; Reconciling Concurrency in

Schedule Delay and Consrucive

Acceleraion, by W. Sephen Dale and

Rober M. DOnorio [6]; and, A

Governmen Windall: ASBCAs Aack

on Concurren Delays as a Basis or

Consrucive Acceleraion, by W.

Sephen Dale and Kahryn T. Muldoon[7].)

Subsequen o 1978, wih he

passage o he Contract Disputes Act of

1978, he US Boards were given broader

jurisdicion over claims arising under

governmen conracs, including breach

o conrac claims [8]. Neverheless, he

legal docrine o consrucive

acceleraion remains irmly esablished

and has developed ino a well known

and relaively common claim on

consrucion projecs.

Is Consrucive Acceleraion

Recognized by Cours Ouside he US?The issue or his aricle is o

respond o he above quesion. I a

conracor is working ouside o he US

and encouners he siuaion se orh

above, do hey have he legal righ o ile

a consrucive acceleraion claim? The

issue arose some ime back when he

auhor was working wih English

barrisers on a claim in he Mideas.

When he auhor asked i he conracor

had iled a noice o consrucive

acceleraion, he barriser clien advised

ha, English law does no recognize

ha legal concep.

I occurred o he auhor ha

owners who reuse o issue ime

exensions when hey are due, orce

conracors ino a Hobbesian choice.

Eiher he conracor reuses o

accelerae and wais unil he end o he

projec o gamble ha hey can convince

an arbiraion panel or cour ha hey

did no cause he delay, and he ownerhas no righ o impose liquidaed

damages, or he conracor ops o

accelerae he work o complee on ime

and pursues damages rom he owner

or he cos o he acceleraion.

However, should he conracor

accelerae and hen learn hey are

working in a jurisdicion ha does no

recognize he concep o consrucive

acceleraion, hey may ace win

economic losseshe cos expended on

heir acceleraion eors, plus he lae

compleion damages imposed under he

conrac!

Les now look a various counries

around he globe o deermine wheher

he legal concep o consrucive

acceleraion is recognized and, i i is

no, is here anoher legal mechanism a

conracor can use o recover such cossin siuaions such as his?

AusraliaEven hough Ausralia is one o he

Commonwealh counries, is cours

dier rom English cours. While

Ausralian law does no recognize he

erm consrucive acceleraion, here is

a leading cour case, commonly cied,

where an Ausralian cour awarded

acceleraion damages o a conracor

despie he ac ha he owner never

ordered acceleraion o he work.In he Ausralian case o Perini

Paciic v Commonwealh o Ausralia

(1969), Mr. Jusice Macarlane, in he

Commercial Cour o New Souh Wales,

indicaed clearly ha his ype o claim

could only be on he basis o some

proven breach o conrac by he

owner;coupled, o course, wih proo

o damages in he orm o compleion o

ime by expendiure greaer han would

oherwise have been incurred. In ha

case, he breach consised o a reusal or

ailure by he ceriied o give anyconsideraion a all o he conracors

applicaions [9].

In his case, he conrac

adminisraor repeaedly reused o

award exensions o ime (EOT), and

he conracor acceleraed o complee

he projec on ime in order o avoid

being assessed liquidaed damages.

Under he erms o he conrac, he

owner had an implied duy o ensure

ha he conrac adminisraor was

properly adminisering he EOT

provisions o he conrac. The cour

ound ha he owner did no live up o

his obligaion and he proven breach

o he implied erms gave rise o a

claim or damages. The cour awarded

he cos o acceleraion o he conracor

[10].

As a resul o his ruling, where

he conracor eels obliged o accelerae

because claimed EOTs have been

rejeced or are no being approved in a

imely way, and he conracor eels i is

aced wih he need o accelerae o

avoid incurring penalies he ailure o

gran EOTs in a imely manner can be

inerpreed as an insrucion o

accelerae [11].

In oher cases, Ausralian cours

have looked o he English law rule

concerning, acs o prevenion. Shouldhe owner ac in some manner as o

delay he projec and hen reuse o

gran an appropriae ime exension, and

coerce he conracor ino acceleraion,

Ausralian cours are likely o award he

resuling damages o he conracor [12].

Conclusion: Even hough Ausralian

cours have no adoped he erm,

consrucive acceleraion, i a

conracor can prove ha he delay o

he projec was no caused by he

conracor; ha hey submied imely

ime exension requess; ha heconrac adminisraor ailed o gran he

appropriae ime exension; ha he

owner knew he conrac adminisraor

was no adminisering he conrac

correcly; hen he conracor can

successully argue he owner breached

heir implied duies and owes he

resuling damages.

In he alernaive, he conracor

may be able o pursue he claim under

he ac o prevenion heory common

in English law. In eiher even, he

conracor will sill be held o hesandard o proving heir damages.

BrazilBrazil is a civil law counry and

decisions o cours are no published nor

do hey have any precedenial value.

However, he auhor conaced a

Brazilian scheduling exper and claims

consulan o learn wheher he concep

o consrucive acceleraion is

recognized in Brazil.

I was repored ha, In Brazil,

recovery o coss by conracors has

always been a gray zone. I have

prepared claims or consrucive

acceleraion in wo power plan

projecs. In one, we managed o ge

some o he money back, bu in he

oher one, he [owner] alleged [a] orce

majeure and he case wen o cour wih

no recovery o he losses [13].

Conclusion: Brazilian law does no


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acceleraion. There appears o be lile

likelihood o recovery o such coss

legally.

CanadaCanadian cours have no expressly

recognized he erm, consrucive

acceleraion, as US cours have. One

Canadian aorney commened on his inhe ollowing manner.

Consideraion o consrucive

acceleraion expressly by Canadian

cours is rare In reviewing Canadian

cases on acceleraion, hose conracors

which have proven acs which look

remarkably like he shopping lis o

elemens o consrucive acceleraion

have ended o be successul wih heir

claims. On he oher hand, i one

reviews he claims which have been

denied, one can easily pick ou which o

he elemens is missing. This despie heac ha one will be hard pressed o ind

Canadian cases which have expressly

adoped he erm, consrucive

acceleraion, or have adoped he ive

lised crieria[14].

There are, however, wo benchmark

Canadian cases ha irmly esablished a

mechanism by which a conracor in a

consrucive acceleraion siuaion may

be able o recover.

In Morrison-Knudsen Co. Inc. v.

British Columbia Hydro and Power

Authority, he cour ound ha he

owner was in undamenal breach o

conrac respecing paymens or

acceleraion [15]. Boh he rial

cour and he appellae cour ound

ha (1) he owner reused o gran

ime exensions or boh owner

caused delays, as well as oher

delays beyond he conracors

conrol; and, (2) he owner

demanded on ime compleion o

he work.

As a resul, he cour deermined

ha he appellans (he owner)

conduc respecing paymen or

acceleraion consiued

undamenal breach (o conrac).

Likewise, in W.A. Stevenson

Construction (Western) Limited v.

Metro Canada Limited, he cour

ound ha he owner reused o

gran any imes exensions when

requesed by he conracor, boh

or owner caused and excusable

delay [16]. The cour also

deermined ha he owner issued

demands ha he conracor

accelerae he work, reminded he

conracor ha ime was o he

essence o he conrac and ha he

coss o acceleraion would be a he

conracors sole expense.

The cour concluded ha,

In a deliberae, anicipaory breach

o conrac by means o a policy

decision, he owner decided ha

he ime or compleion would no

be exended, no maer wha he

cause.

Conclusion: Despie he ac ha

Canadian cours have no adoped he

erm, consrucive acceleraion, i a

conracor can prove he siuaion meall o he six crieria se orh above, hen

hey can claim breach o conrac in

order o perec he claim and recover

heir acceleraion coss.

ChinaThe Peoples Republic o China does

no recognize he concep o

consrucive acceleraion in heir

Contract Law of The Peoples Republic of

China [17]. Nor is consrucive

acceleraion included in he Chinese

Construction Contract of Construction

Works (GF-1999-0201) [18].

Chinese consrucion law and

conracs disinguish beween

acceleraion, miigaion, and

expediing.

Acceleraion is an increase in

resources and inensiy o work wih

he aim o bringing he job in on

ime.

Miigaion means reallocaing

exising resources in order o

minimize cos and delay resuling

rom changed condiions.

Expediing is a resul o conracor

caused delay, and resuls in he

conracor aking measures o mee

he compleion dae a heir own

expense [19].

However,Article 284 of the Contract

Law of The Peoples Republic of China

mandaes he ollowing

Where due o he aul o he

employer, he projec is sopped or

posponed in he course o he

consrucion, he employer shall

adop measures o ose or reduce

he losses and compensae he

conracor or he losses and acual

expenses recurred hereo due osopping and idling o he labor

orce, changes in he ransporaion,

removal o he machinery and

equipmen, oversocking o

maerials and building

componens.

The auhor o he privae paper

reerred o above suggesed ha in

siuaions where owner caused delay has

occurred; he conracor has requesed

appropriae ime exensions; and he

owner has reused o gran exensions oime and demands on ime compleion;

he conracor needs o obain he

owners demand or on ime compleion

in wriing.

I all o his is done, hen he

conracor may be in a posiion o ile

sui or damages arguing, direced or

insruced acceleraion based on he

employers breach o conrac. I was

also suggesed ha Chinese culure and

business pracice may assis in resolving

such claims, as here is lile endency o

pursuing dispues in liigaion.

Conclusion: Chinese law does no

recognize consrucive acceleraion, bu

does require an owner o appropriaely

adjus he ime o compleion and pay

or delay damages or owner caused

delays. However, should he owner

reuse o issue appropriae ime

exensions and demand on ime

compleion, he conracor should insis

ha he on ime compleion insrucion

be pu in wriing. Once his is received,

he conracor is in a posiion o seek

recovery o acceleraion coss, arguing

ha he owner breached he conrac

(which incorporaes Chinese

consrucion law by reerence) and

insruced acceleraion.

ColombiaA privae e-mail response o he

auhors inquiry concerning consrucive


7/28/2019 ce12-01


acceleraion in Colombia elicied he

ollowing response.

here is a subsanial parallel

beween US and Colombia, similar

seps, somewha dieren mix o

characers and a dieren emphasis

on all he pieces o handling claims

[20].

Conclusion: Despie he ac ha

Colombia is a civil law naion, i appears

rom he above ha heir legal sysem

may provide or recovery o acceleraion

coss in a consrucive acceleraion

siuaion; provided ha, he conracor

complies wih he six seps jusiying

consrucive acceleraion and can

documen each poin.

Egyp

The Arabic Republic o Egyp is a civillaw naion and as such, has no case law.

Consrucion projecs, generally, are

governed by Egyptian Civil Code [21]. In

response o he auhors inquiry

concerning he recogniion o

consrucive acceleraion under Egypian

law, one claims consulan working in

Egyp responded wih he ollowing.

From my 13 years o experience in

working in Egyp so ar, I can

generally ell you ha consrucive

acceleraion is no recognized here. here is also no recogniion o

delay analysis echniques eiher, so

he principle o an excusable delay

(poin 1 in he US condiions or

conracors recovery) does no

exis [22].

The auhor has worked in Egyp on

hree dieren projecswo in

Alexandria and one in Cairoand based

on his experience concurs ha Egypian

Civil Code oers relie o he conracor

only or owner caused delay.

There is anoher problem

concerning he concep o consrucive

acceleraion under Egyptian Civil Code.

Many aorneys argue ha he Saue o

Limiaions renders noice provisions in

Egypian conracs unenorceable by law

[23]. As such, many cours and

arbiraion panels ignore he noice

provisionshus eliminaing par o he

second poin, as well as he ih poin o

he six poin es or consrucive

acceleraion.

This argumen is counerbalanced

by oher Egypian aorneys who argue

ha i is a well esablished Civil Code

principle ha, he conrac is he law o

he paries.

Conclusion: Egypian law does no

recognize consrucive acceleraion. Nor

does i recognize he concep o

excusable delay and noice provisions

may or may no be enorced.

A conracor acing a consrucive

acceleraion siuaion probably canno

recover acceleraion coss incurred o

recover los ime resuling rom

excusable delay siuaions; bu may be

able o recover such coss incurred in

recovering los ime because o owner

caused delay under a breach o conracheory.

I, however, he conracor can

negoiae all six condiions relaed o

consrucive acceleraion ino he

conrac he Civil Code concep ha, he

conrac is he law is likely o prevail.

FranceFrance oo is a civil code counry, so

no case law as we know i in he US

exiss. French Civil Code gives judges

grea discreion o reduce or increase

conracually agreed penalies andliquidaed damages.

There are a number o cases

where French cours have reduced he

delay penalies o be paid by a

conracor because he delay was in oal

or in par aribuable o he behavior o

ohers, such as eiher he main

conracor or he owner[24].

Based on a reading o French law,

se orh in his aricle, he only way o

accelerae he work o he projec is o

oer an incenive or bonus or such

acceleraion. Accordingly, French law

does no recognize he concep o

consrucive acceleraion.

Conclusion: A conracor working

on a projec governed by French law who

encouners delay and an owner, who

reuses all requess or ime exension, is

beer o o no accelerae he work o

aemp o recover he los ime. French

cours have he power and he

predilecion o reduce liquidaed

damages or penalies when acual

damages are lower and acceleraion can

only be ordered by adding bonuses o

he cos o he conrac.

GermanyMos conracs in Germany are

execued under he AllgemeinenVertragsbedingungen fur die Ausfuhrung

von Bauleistgungen (VOB/B), he

German conrac Terms for the Execution

of Construction works.

The VOB/B is a preormulaed se o

erms and condiions designed or he

addiion and parial modiicaion o

German law as i applies o consrucion

conracs [25].

There is no recogniion o he

concep o consrucive acceleraion in

he VOB/B. Secion 6 o he VOB/B deals

wih he issue o hindrances and delay.Should he owner hinder or delay he

conracors perormance, he conracor

is obligaed o give noice o he owner

and he owner is obligaed exend he

deadline or compleion he work.

The conracor is also eniled o

seek recovery o reasonable damage

compensaion under Clause 6 o he

VOB/B, as well as 642 o he German

Civil Code. Should he owner reuse o

issue ime exensions and demand on

ime compleion he conracor may be

able o recover heir acceleraion coss. Conclusion: A conracor acing a

consrucive acceleraion siuaion may

be able o recover acceleraion coss

arguing acs o hindrance and breach

o conrac or ailure o issue ime

exensions in a imely manner.

Hong KongHong Kong cours, like many oher

Commonwealh cours, do no recognize

he concep o consrucive acceleraion.

Claims on his basis [consrucive

acceleraion] are common in he US, bu

in Hong Kong here is no such docrine

[26]. However, hey do subscribe o he

legal heory o miigaion o damages, a

concep ha is based upon UK law.

As one auhor poined ou,

conracors have or many years looked

o recover rom employers he addiional

coss o implemening delay miigaion

measures (addiional coss o normal

working excluding prolongaion) even

7/28/2019 ce12-01

10/64

where here was no employers

insrucion o implemen such

measures[10].

Addiionally, Hong Kong cours

recognize he conracors abiliy o

recover acceleraion coss incurred as a

resul o owner caused delay where he

owner reuses o gran ime exensions.

Like oher cours, Hong Kong cours

acknowledge his as a breach o

conrac. They do, however, uphold

noice provisions and require ha he

conracor documen he delay

miigaion measures and coss

accuraely.

Conclusion: Despie he lack o

accepance o he heory o consrucive

acceleraion, conracors caugh in such

a siuaion in Hong Kong, may sill be

able o recover damages using he

miigaion o delay or breach o conracheories.

IndiaIn response o he auhors inquiry

concerning he recogniion o

consrucive acceleraion in Indian

cours, he ollowing was provided:

Conracor is eniled o

acceleraion wih coss when/i:

Schedule is delayed due o orce

majeure and clien requires original

end dae o be me Clien is direccause o delay o schedule, bu sill

requires original dae o be me

There is no general (naional) law

which speciically prescribes when a

conracor can, or canno claim

acceleraion coss. [27]

Addiionally, Indian cours recognize

he ime a large concep, wherein i

here is an ac o hindrance by he owner

or heir agens, or orce majeure evens,

hen a ime exension is owed o he

conracor. Should he owner reuse o

gran such a ime exension, hen i can

be said ha ime is a large and as here

is no longer a dae rom which liquidaed

damages can be calculaed, he owner

loses heir righ o impose liquidaed

damages [28]. I he owner demands on

ime compleion he conracor may be

able o recover on he basis o breach o

conrac.

Conclusion: As much o Indian law

is drawn rom English common law i

appears ha Indian cours do no

recognize he docrine o consrucive

delay, bu are amenable o legal

argumens cenered on delay miigaion,

ime a large, and/or breach o

conracual obligaions.

IndonesiaIn anoher e-mail response o he

auhors inquiry, Mr. Asrizal Sabri, an

Indonesian projec manager, responded

wih he inormaion ha Indonesian

laws recognize he righ o conracors o

recover damages resuling rom

acceleraion resuling rom owner

caused delay or orce majeure evens

[29].

Reerence was made o Keppres No.

80 (Republic of Indonesia Laws) in

suppor o his saemen [30]. KeppresNo. 80 was he Indonesian governmens

aemp o align heir procuremen

process wih hose o oher naions and,

as such, he governmen impored legal

and conracual conceps rom many

oher counries. The e-mail response

also poined ou ha or a conracor o

recover such coss hey will need o

obain wrien documenaion ha he

owner has demanded acceleraion.

Conclusion: Alhough i is no clear

which legal heory conracors may rely

upon o recover consruciveacceleraion coss, wha appears o be

clear is ha i he conracor can prove

excusable delay, he owners reusal o

gran ime exensions, and he owners

demand ha he conracor ake acion

o recover he los ime, hen he

conracor may have a legal righ o

recover damages.

IrelandMany projecs in Ireland are

conraced or under RIAI, GDLA 82, or

IEI form of contract[31, 32, 33]. None o

hese conracs expressly recognize he

concep o consrucive acceleraion.

However, all o hem provide or

recovery o loss and expense or

damages, as well as ime exensions.

Some causes o delay may also

enile he conracor o claim loss and

expense or damages, under RIAI/GDLA

clauses 2 and/or 29(b) [as well as under

IEI clause 44] However here is no

provision in hose clauses or he

paymen o pure acceleraion coss. A

mere volunary decision by he

conracor o accelerae is no enough o

ound a claim or consrucive

acceleraion. There mus be some

elemen o undue coercion by he

employer, which compels he conracor

o accelerae [34].

Conclusion: I is no clear i Irish

cours will adop he concep o

consrucive acceleraion. Bu, i a

conracor can prove delay enilemen;

he owners reusal o allow an exension

o ime; coercion by he owner orcing

he conracor o accelerae work; and

acual damages, hen coss may be

recoverable under he loss and expense

or damages clauses oRIAI, GDLA 82 or

IEI contract. Addiionally, since Irish

cours are heavily inluenced by English

cours, he legal conceps o breach oconrac, delay miigaion and/or ime a

large may also assis in recovery o

damages.

MalaysiaMany projecs in are consruced

using he PAM, he JCT, or he ICE or o

conrac [35, 36, 37]. As such, Malaysian

conracs recognize he legal conceps o

ac o prevenion or ac o hindrance and

ime a large. The Malaysian Federal

Cour in Sim Chio Huat v Wong Ted Fui

deal wih a case where he conrac hada liquidaed damages provision bu did

no have a ime exension clause [38].

The cour ruled ha he owners delay in

providing he sie and he issuance o

exra work orders operaed o se ime a

large and render inoperaive he

liquidaed damages clause.

Mr. Dennis Oon Soon Lee, a

Malaysian consrucion manager, has

analyzed he issue o consrucive

acceleraion under Malaysian law and

concluded ha his concep is no

recognized. However, he also

deermined he ollowing.

where i can be shown ha he

conrac adminisraor has unreasonably

or unnecessarily delayed he gran [o]

exensions o ime, here is lile

diiculy in esablishing ha his is a

breach o conrac by he employer. In

cases which deal wih he ailure o gran

an exension o ime and he eec ha

his has on he liquidaed damages


7/28/2019 ce12-01


provisions, i appears o be acceped

ha he said ailure by he conrac

adminisraor is a breach o conrac by

he employer. Tha a disincion needs

o be made beween an express reusal

or coninued ailure o deal promply

wih an exension o ime applicaion on

he par o he conrac adminisraor,

and an honesly held view or assessmen

ha no exension o ime is due. The

issue however is when can he conrac

adminisraor be considered o have

unreasonably or unnecessarily delayed

he gran o an exension o ime [39].

However, as noed by Mr. Oon Chee

Kheng in a horough aricle on ime

exensions and liquidaed damages

under Malaysian law,

I remains o be said ha even i

loss and expense or coss o

consrucive acceleraion is claimable,

his is sricly beyond he jurisdicion ohe Engineer/Archiec/S.O., and he

same can only be pursued in arbiraion

or liigaion. Loss and expense and

coss are boh conracual inancial

compensaion mechanisms and he

Engineer/Archiec/S.O. can only ceriy

hese arising rom consrucive

acceleraion i here are conracual

provisions o ha eec [40].

Conclusion: Malaysian cours do

no recognize he consrucive

acceleraion legal heory. They do,

however, acknowledge he legalconceps o acs o

prevenion/hindrance, ime a large and

breach o conrac. Thus, i a conracor

can prove enilemen o a ime

exension and reusal o he owner o

issue he ime exensions warraned by

he conrac, plus he damages incurred

by he conracors acceleraion eors,

hen he conracor may be able o

recover such damages bu will have o

do so in arbiraion or liigaion.

OmanOmans legal sysem is based on civil

code principles and, in paricular,

Egyptian Civil Code. Privaely inanced

conracs in Oman are generally

governed by Egyptian Civil Code.

However, Oman adoped a orm o

conrac general condiions based on he

Inernaional Federaion o Consuling

Engineers (FIDIC) documens. Public

works projec in Oman are subjec o his

laer se o condiions [41].

Consrucive acceleraion is no a

recognized concep under he FIDIC

documens as he FIDIC documen were

adaped rom he Insiue o Civil

Engineers (ICE) documens. As he ICE

documens were developed by an

English proessional sociey, i is no

unexpeced o ind ha hey do no

recognize his concep.

However, when working under a

FIDIC conrac, should he owner reuse

o issue appropriae ime exensions, he

conracor is no compelled o accelerae

heir work unless so ordered in wriing

by he owner. (I such an order is issued,

his becomes a direced acceleraion

under Clause 8 o he FIDIC documens.)

Under English law one o he

primary areas o concern wih respec o

hese provisions would be he poenialapplicabiliy o he docrine o acs o

prevenion. Under his docrine i here

is no provision or an exension o ime

or none is graned when i should have

been and i an employer prevens

hrough his own acions he conracor

rom compleing wihin he speciied

ime or compleion, ime becomes a

large and he conracor is given a

reasonable ime in which o complee

Peak v. McKinney(1969) 1 BLR 111 (CA).

Liquidaed damages all away [42].

In a siuaion where a conracor isworking on a privaely inanced conrac

subjec o Egyptian Civil Code and aces

consrucive acceleraion siuaion,

acceleraion coss may be recoverable in

accordance wih he earlier discussion o

Egypian law above.

Conclusion: Oman law does no


acceleraion as such. As many conracs

in Oman are execued under FIDIC

conracs a conracor in his siuaion is

no compelled o accelerae i hey are

delayed by ac o he owner. Theconracor can asser he argumen ha

he delay was an ac o prevenion and

ime is now a large (i.e., here no longer

exiss eiher a compleion dae or

liquidaed damages) and he conracor

is ree o inish he work wihin a

reasonable period o ime.

Should he conracor be working on

a privaely unded conrac, subjec o

he provisions o Egyptian Civil Code

hen a conracor acing a consrucive

acceleraion siuaion probably canno

recover acceleraion coss incurred o

recover los ime because o excusable

delay siuaions; bu may be able o

recover such coss incurred in recovering

los ime because o owner caused delay

under a breach o conrac heory.

SingaporeProjecs in Singapore are requenly

consruced under he JCT, ICE, or he

PSSCOCorm o conrac [43]. None o

hese conrac orms recognize or

acknowledge he concep o

consrucive acceleraion [44]. Like

Malaysian cours (discussed above)

cours in Singapore recognize he

conceps o ac o prevenion or ac o

hindrance, ime a large, and breach o

conrac [45].

Conclusion: The cours o Singaporedo no recognize he consrucive

acceleraion legal heory. They do,

however, acknowledge he legal

conceps o acs o

prevenion/hindrance, ime a large and

breach o conrac. Thus, i a conracor

can prove enilemen o a ime

exension and reusal o he owner o

issue he ime exensions warraned by

he conrac, plus damages incurred by

he conracors acceleraion eors,

hen he conracor may be able o

recover such damages.

Souh AricaSouh Arican law and cours do no

recognize he docrine o consrucive

acceleraion.

The argumen adoped by many

conracors in Souh Arica namely ha a

rejecion o an EOT reques which he

conracor believes is correc amouns o

an insrucion o accelerae and inish on

ime is simply incorrec. The reusal o

gran an EOT can amoun o a deemed

insrucion o accelerae. A claim or

consrucive acceleraion under English

law mus be based on ordinary principles

or breach o conrac and

damages[46].

However, i has been poined ou

ha under FIDIC, NEC, JBCC, and he

SAICE[47, 48, 49]:

The engineer owes a duy o care

owards he conracor in adminisering

7/28/2019 ce12-01


he conrac o deermine such [ime]

exension and is obliged, no eniled, o

carry ou his uncion. I is he engineer

and no he employer who mus

deermine and gran he exension.

The engineer is obliged o reach a

decision and convey his decision o he

conracor wihin a reasonable period o

ime aer he exra or addiional work or

oher special circumsances have arisen

[50].

Conclusion: Based in his principle,

he ailure o he engineer o properly

adminiser he ime exension provisions

o he conrac is likely a breach o

conrac. Should he owner hen

demand on ime compleion hus

causing he conracor o accelerae

heir work, damages will arise which

should be recoverable as hey low rom

he breach o conrac. I would appear,

however, ha he conracor musobain he owners demand or on ime

compleion in wriing as Souh Arican

cours apparenly do no accep a

deemed insrucion o accelerae.

Sri LankaNo much is known concerning

consrucive acceleraion in Sri Lanka.

However, he ollowing was repored.

Sri Lankan Preceden:

O paricular ineres is he repor o

a hallmark case in Sri Lankainvolving he consrucion o

irrigaion canals. In ha case he

conracor was orced o spend a

large sum on duplicaing his

emporary equipmen because o

he ailure o he principal agen o

award an exension o ime

imeously. The ICC Arbiraion

awarded he conracor some US

$56 million being approximaely 95

percen o is proven coss o

consrucive acceleraion. Wha

makes his case o paricular

ineres is ha he law o he

conrac was Sri Lankan law and Sri

Lanka is one o he ew counries

ouside Souh Arica having a

Roman-Duch legal oundaion

[51].

Conclusion: Recovery o

consrucive acceleraion damages is

poenially possible in Sri Lanka, bu

based upon he above inormaion, he

circumsances under which such

damages may be recovered are no

known. Should a conracor begin o

become involved in such a siuaion,

conac wih compeen legal counsel is

requiredsooner raher han laer.

Trinidad and TobagoIn response o he auhors inquiry

concerning recogniion o he docrine

o consrucive acceleraion in Trinidad

and Tobago, Mr. Sanley Wes, Pas

Presiden o AACE Inernaionals

Caribbean Secion respondedTwo o

he senior lawyers who deal wih

conracs are no amiliar wih he

erm and as such have no knowledge o

any cour case or oher claims dealing

wih consrucive acceleraion [52].

Conclusion: Since he laws o

Trinidad and Tobago are based in Englishlaw, i is presumed ha even hough

Trinidadian cours do no recognize

consrucive acceleraion as a legal

docrine, hey would mos likely

subscribe o he conceps o ac o

hindrance or ac o prevenion, ime and

large and breach o conrac.

Unied Arab Emiraes (UAE)

In a shor bu very inormaive

aricle, Mr. Chris Larkin, an English

Charered Engineer, wih a law degree

and arbiraion qualiicaions, advisedha he docrine o consrucive

acceleraion is no recognized in he UAE

[53]. However, Mr. Larking noes ha

Article 246 o he UAE Federal Law No. 5

o 1985 (he Civil Code) conracs

mus be perormed in a manner

consisen wih he requiremens o

good aih

Mr. Larkin opined ha his applies

boh o he paries o he conrac, bu

also o he person who has he power o

award exensions o ime and ceriy

paymen applicaion. He noed, or

example, ha under he FIDIC Redbook,

4th Edition, he he engineer has a

duy o deermine he exension o ime

ha he conracor is airly eniled o.

In exercising his duy, he engineer mus

ac imparially wihin he erms o he

conrac

Mr. Larking suggesed ha i he

engineer did no perorm heir duy

airly, hen hey could be ound in

violaion oArticle 246. He goes on o

sugges ha, i here was an ac o

bad aih ha resuled in he conracor

incurring addiional coss, hen he

deauling pary or paries responsible

could be liable o pay compensaion.

He noed also ha Aricle 282 o he Civil

Code saes ha:

Any harm done o anoher shall

render he perperaor, even i he is

a minor, liable o make good he

harm.

Conclusion: Nowihsanding he

ac ha UAE law does no recognize he

docrine o consrucive acceleraion, i

is possible or a conracor o recover

damages under he UAE Civil Code i he

conracor ollows he requiremens o

he conrac concerning noice and ime

exension requess and can prove hahe engineer ailed in his duy o ac

imparially.

Unied Kingdom (UK)In a classic bi o undersaemen,

R.D. Pickles wroe

The English cours have been a

lile slow a recognizing a siuaion

where a claim or consrucive

acceleraion would be relevan

[54].

In ac, Proessor Ian Duncan

Wallace, edior oHudsons Building and

Engineering Conracs, has gone on

record by declaring he docrine o

consrucive acceleraion a iciious

docrine no ounded on consensual

or quasi-conracual basis and would

no be accepable in English Cours and

Commonwealh Cours [55]. Numerous

oher schedule and schedule delay exs

ou o he UK agree wih he saemen

ha he docrine o consrucive

acceleraion is no ye recognized in UK

cours [56].

Wha is acknowledged, however, is

he owner and engineers duy o

adminiser he conrac in accordance

wih he erms o he conrac. Thus, i

some acion o he owner or he

engineer consiues an ac o hindrance

or an ac o prevenion; he owner or

engineer reuses o gran an appropriae

ime exension; he conracor is

7/28/2019 ce12-01


pressured or coerced o make up he los

ime; he conracor acceleraes and

incurs acual coss; hen under he legal

conceps o prevenion, ime a large

and breach o conrac, he conracor

may be able o recover heir acceleraion

coss. However, as one auhor poined

ou,

Under he Housing Grants,

Construction and Regeneration Act, he

conracor now has he opion o

address his uncerainy a an early sage

by reerring his claim or an exension o

ime o an adjudicaor during he course

o he conrac, raher han o he cour

or an arbiraor aer compleion [57].

This is probably he righ way o go,

given he problems wih acceleraion

[58].

Thus, conracors aced wih a

consrucive acceleraion siuaion can

seek adjudicaion, which ypically akes avery shor period o ime, whenever he

owner or engineer denies a ime

exension and aemps o make he

conracor recover he los ime.

I is also noed ha one English

cour case wihin he las ew years came

very close o acknowledging

consrucive acceleraion. In Motherwell

Bridge Construction Ltd v Micafil

Vacuumtechnik, he cour ruled ha

he claiman was eniled o he coss o

he measures aken o achieve

compleion earlier han conracuallynecessary [59, 60].

Conclusion: Even hough English

cours do no currenly recognize he

concep o consrucive acceleraion,

hey appear o be moving in his

direcion. I a conracor inds

hemselves in a consrucive

acceleraion siuaion, and he conrac

is under he jurisdicion o he Housing

Grants, Construction and Regeneration

Act, he irs sep should be o reer he

dispue o adjudicaion o seek a

decision by a neural decision maker. Inhe absence o his, conracors seeking

recovery o consrucive acceleraion

coss will need o documen acs o

prevenion or hindrance, coercion o

obain compleion earlier han should be

been allowed, and breach o conrac. I

he conracor in such a siuaion can

prove hese poins, hen hey should be

able o recover heir acceleraion coss.

Conclusions

In all counries ouside he US

included in his survey, he concep

o consrucive acceleraion is no

recognized, a leas under his name.

Bu in mos o he counries lised above,

conracors who have been

consrucively acceleraed because o

he reusal o he owner o gran imeexensions when warraned ollowed by

coercion o orce on ime compleion,

conracors may recover some or all o

he damages incurred using a number o

oher legal heories.

The common heme supporing

hese alernaive legal heories seems o

be he ollowing.

Fixed Period RequiremenThe

conrac mus have a Time of the

Essence Clause and a Time of

Completion requiremenaccompanied by some sor o lae

compleion damages clause. Aer

all, i ime is no imporan o he

projec owner, hen he conracor

is simply held o a sandard o

compleing he work wihin a

reasonable ime.

Conrac Provides or Exensions o

TimeThe conrac mus have

language which allows he owner o

exend ime under cerain

circumsances. Tha is, he owner

mus have he legal abiliy under he

conrac o gran ime exension. I

here is no clause providing or ime

exensions hen he owner canno

be said o have breached heir

obligaion by no graning such

exensions.

Mee he Six Sep Checklis or

Consrucive Acceleraion

Conracors seeking recovery o

acceleraion coss resuling rom anowners reusal o gran a ime

exension probably have o

demonsrae he ollowing o he

rier o ac.

Excusable delay was

encounered.

Noice was provided o he

owner and appropriae

ime exension requess

were submied.

The owner issued no ime

exension or less ime han

should have been allowed.

The owner hreaened or

coerced he conracor ino

acceleraing heir work in

order o recover some or

all o he los ime.

The conracor provided

noice o he owner ha

hey considered he

owners acions o be a

direcive o accelerae.

And,

Finally, he conracor did

acually accelerae and can

documen heir acions

and he resuling damage.

Arbiraion or Liigaion is Required

I appears rom he resuls o his

survey ha, unlike he US, his is noa claim ha can be negoiaed o

selemen on he job sie. Raher,

as mos counries deal wih his sor

o claim in he conex o breach o

conrac (as did he US prior o he

Contract Disputes Act of 1978), hen

he claim in mos counries will

mos likely have o go o arbiraion

or liigaion.

REFERENCES1. Bramble, Barry B. and Michael T.

Callahan, Consrucion DelayClaims, 2nd Edition, 6.8, Wiley LawPublicaions, New York, pages 178-

182, 1992.

2. Hudsons Building and Engineering

Conracs, 11th Edition, 7-050,Swee & Maxwell, London, England,

1995.

3. See, or example, Lewis Consr. Co.,

ASBCA 5509, 60-2 BCA 2732;Mechanical Uils., Inc., ASBCA 7345,

1962 BCA 13,260; and Elecronic

& Missile Faciliies, Inc., ASBCA

9031, 1964 BCA 4338.4. See Cibinic, John, Ralph C. Nash and

James F. Nagle, Adminisraion o

Governmen Conracs, 4th Edition,

pp. 445 458, George WashingonUniversiy, Washingon, D.C., 2006;

see also, Wickwire, John M.,

Thomas J. Driscoll, Sephen B.

Hurlbu and Mark J. Gro,

Consrucion Scheduling:

Preparaion, Liabiliy and Claims,

3rd Edition, 7.10(B), pp. 268 271,

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Wolers Kluwer Law & Business,

New York, 2010.5. AACE Inernaional Transacions,

AACE Inernaional, Morganown,

WV, 2004.

6. Public Conrac Law Journal,Volume 39, No. 2, Winer 2010.

7. Procuremen Law, Summer 2009.

8. 41 U.S.C. 601-613, 1988.

9. Lyle, Bryce, What is ConstructiveAcceleration? MaserBuilders

KwaZulu-Naal, Augus 2009.

10. Rawling, Brian E., Delay Mitigation,

Brian E. Rawling & Associaes, Ld.,Winer 2005/6.

11. Weaver, Parick, Delay, Distruption

and Acceleration Costs, Mosaic

Projec Services Py Ld, SouhMelbourne, Vicoria, 2005.

12. Cremean, Damien J., B.A. Shnookal,

and Michael H. Whien, Brookings

on Building Conracs, 4th Edition,

Secion 6.8, LexisNexisBuerworhs, Ausralia, 2004.

13. Privae e-mail communicaion rom

Aldo Dorea Maos, Aldo MaosConsuling, April 20, 2010.

14. Grenier, Glenn, The Traps and

Pitfalls of Construction Delay Claims

in Ontario, Lang Michener LLP,Torono, Onario, 2005.

15. D.L.R. (3d) 186 (B.C.C.A.) 1978.

16. 27 C.L.R. 113 (B.C.S.C.) 1987

17. Adoped and promulgaed by heSecond Session o he Ninh

Naional Peoples Congress on

March 15, 1999.

18. Issued by he Minisry oConsrucion o he Peoples

Republic o China and he Bureau o

Indusrial and Commercial

Adminisraion o he PeoplesRepublic o China on December 24,

1999.

19. Zhang, JianHua, ConstructionAcceleration in China , anunpublished paper prepared in

response o he auhors inquiry

concerning consrucive

acceleraion in China, April 25, 2010.See also Richer, Irvin E.,

Inernaional Consrucion Claims:

Avoiding & Resolving Dispues,

McGraw Hill Publicaions, New York,pages 73-77, 1983.

20. E-mail response rom John Smih, a

recognized US consrucion claims

consulan and esiying exper,currenly reired and living in

Bogoa, Colombia, May 3, 2010.

21. Aricles 646 o 667.

22. E-mail response rom Waleed El

Nemr, April 20, 2010 andpresenaion slides by Dr. Shei El

Haggan, FIDIC Middle Eas Conrac

Users Conerence, Abu Dhabi,

February 25, 2010.23. Article 388, Egyptian Civil Code.

24. Colaiua, Virginie A., How French

Courts Discretionary Power to

Reduce Delay Penalities andLiquidated Damages May Affect

Acceleration of Works in

Construction Projects, IBA

Conerence, Session on Time andAcceleraion Issues Aecing

Inernaional Consrucion

Conracs, Madrid, 2009.

25. Osing, Dr. Sean, Time andAcceleration Issues Affecting

International Construction

Contracts: The German Approach,

paper presened a he IBA Annual

Conerence, Madrid, 2009.26. Molloy, John B., Constructive

Acceleration A Valid Claim? Hong

Kong Insiue o Surveyors, FeaureAricle, July 2002.

27. E-mail response rom Madhu

Ponnappan Pillai, AACE Regional

Direcor and projec managemenconsulan in India, April 22, 2010.

28. Westwood v. Secretary of State for

India (1863) 1 New Rep 262, ciing

Holme v. Guppy (1838) 3 M&W 387.See also: Roberts v. Bury

Commissioners (1870) LR 5 CP 310.

29. E-mail response rom Asrizal Sabri,

Indonesian projec manager, April20, 2010.

30. Presidenial Decree Number 80 o

2003.

31. Royal Insiue o he Archiecs oIreland.

32. Agreemen and Condiions o

Conrac or Building Work or use

by Governmen Deparmens andLocal Auhoriies, March 1982.

33. Insiuion o Engineers o Ireland,

Condiions o Conrac or use in

Connecion wih Works o CivilEngineering Consrucion, 3rd

Edition, 1980, revised and reprined

Ocober 1990.

34. Lyden, John M.E., Acceleration

Claims on Construction Projects in

Ireland, paper given o a meeing o

he Sociey o Consrucion Law and

he Sociey o Charered Surveyors,Cork, Ireland, March 14, 2005.

35. The Malaysian Insiue o

Archiecs Form, 2nd Edition, 1998,

modeled aer he JCT orm o

conrac bu no updaed asrequenly.

36. The Join Conrac Tribunal

Sandard Forms o Conrac, 2nd

Edition, 1998.37. The Insiuion o Civil Engineers

Conracs, 7th Edition, 1999.

38. 1 MLI 151, 1983.

39. Oon, Soon Lee, Dennis, Extension ofTime and Acceleration Claims, hesis

submied in ulillmen o he

requiremens or he award o he

degree o Maser o Science inConsrucion Conrac

Managemen, Faculy o Build

Environmen, Universii Teknologi,

Malaysia, March 2006.40. Khen, Oon Chee, Extension of Time

and Liquidated Damages in

Construction Contracts, paper

presened a a seminar on

Consrucion Conracs andArbiraion, sponsored by The

Insiuion o Engineers, Malaysia

(Perak Branch), Ipoh, Malaysia,Ocober 18, 2003.

41. Unpublished paper prepared by

legal counsel a Trowers & Hamlyns,

Musca, Oman, daed Ocober 21,2008 and presenaion slides by Dr.

Shei El Haggan, FIDIC Middle Eas

Conrac Users Conerence, Abu

Dhabi, February 25, 2010.42. Knuson, Rober, An English

Lawyers View of the New FIDIC

Rainbow Where is the Pot of Gold?

Privaely produced paper, London,June 2003.

43. The Singapore Public Secor

Sandard Condiions o Conrac,

3rd Edition, 2005.44. Sephenson, Andrew and Ian Bailey,

Concurrency Causation

Commonsense and Compensation,

IBA Conerence, InernaionalConsrucion Projecs Commiee,

Madrid, 2009.

45. Oon Soon Lee, Dennis, supra.

46. Mariz, M.J. and Andries P. Shue,APractical Approach to Calculate

Acceleration Costs on Construction

Projects in South Africa, 5h Pos

Graduae Conerence onConsrucion Indusry Developmen,

Deparmen o Quaniy Surveying

and Consrucion Managemen,

Universiy o he Free Sae,Bloemonein, Souh Arica, March

16-18, 2008.

7/28/2019 ce12-01


47. The New Engineering Conrac,

Insiuion o Civil Engineers,November 1995.

48. The Join Building Conracs

Commiee, Sepember 2007.

49. The Souh Arican Insiuion o

Civil Engineers, 5th Edition, 1982.

50. Loos, P.C., Engineering and

Consrucion Law, Jua & Co. Ld.,

Cape Town, Souh Arica, 1985.51. Binningon, Chris, Sri Lankan

Precedent, The Civil Engineering

Conracor, January 2006.

52. E-mail rom Sanley Wes, PasPresiden, AACE Inernaional

Caribbean Secion, daed April 29,

2010.

53. Constructive Acceleration DemandsClear Intentions, ConsrucionManagemen Guide, Sepember 18,

2008, rerieved rom

hp://cmguide.org/archives.

54. Pickles, R.D., What Is ConstructiveAcceleration? Maser Builders

KwaZulu-Naal news, Augus 2009.

55. Hudsons Building and Engineering

Conracs, 11th Edition, 7-050,

Swee & Maxwell, London, England,

1995.

56. See, or example, Keane, P.J. and A.F.

Caleka, Delay Analysis inConstruction Contracts, Wiley-

Blackwell, London, 2008; and

Lowsley, Sephen and Chrisopher

Linne,About Time Delay Analysisin Construction, RICS Business

Services Limied, London, 2006.

57. Reerring o Section 108, Right to

Refer Disputes to Adjudication, ofthe Housing Grants Construction

and Regeneration Act of 1996, Part

II. This Ac has more recenly been

amended by he Local Democracy,Economic Developmen and

Consrucion Ac o 2009, which

requires ha a conrac speciically

include provision in wriing ohis eec.

58. Winer, Jeremy and Jacqueline

Mimms, Acceleration Claims, Baker

& McKenzie, March 2002. See also,

Gibson, Roger, Consrucion Delays,Exensions o Time and

Prolongaion Claims, Chaper 20,

Rouledge Taylor & Francis Group,London, 2008.

59. 81 Con LR 44; TCC, January 31, 2002.

60. Ndekugri, Issaka,A Legal Analysis of

Some Schedule-Related Disputes in

Construction Contracts, The

Consrucion and Building Research

Conerence o he Royal Insiuion

o Charered Surveyors, GeorgiaTech., Alana, Sepember 2007.

ABOUT THE AUTHOR

James G. Zack, Jr.,

CFCC FRICS, is wih

Navigan Consuling,

Inc.n He can be

conaced by sending

e-mail o:

[email protected]

Now: If schedules needed analysis,

Primavera would have included it.

See more at

http://ScheduleAnalyzer.com

What is the difference between

reviewing your P6 schedule andreviewing your P6 XER file?

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7/28/2019 ce12-01


TECHNICAL ARTICLE

The Oseing Delay Issue

Concurren delay is an

imporan issue in virually allconsrucion delay cases. The

sakes are high, because i

here are wo delays and hey can be

considered concurren, hen he

conracor is no eniled o delay

damages and he owner is no eniled o

liquidaed damages, alhough a non-

compensable ime exension is usually

graned [9].

Figure 2 illusraes a ypical

concurrency siuaion.

The auhors deiniion o

concurrency, including oseing delaysollows:

Concurren Delay is he

occurrence o wo or more delay

evens a he same ime one

an owner risk even, he oher a

conracor risk evenhe

eecs o which are el a he

same ime. The erm

concurren delay is oen used

o describe he siuaion where

wo or more delay evens arise

a dieren imes, so long as he

eecs o hem are el a he

same ime. This is generally

reerred o as oseing

concurren delays.

Concurrency is primarily a legal

heory daing rom he early 1900s

(alhough i was no called concurrency

hen). Mos o he conemporary

concurrency law we rely upon in he US

was developed in he 1960s hrough he

1980s. During his period, judicial

decisions releced a careul dissecion o

he hen available CPMs schedules ha

unorunaely generally made deailed

allocaion o responsibiliy impossible o

deermine, hence more indings o

concurren delay [2].

Ye, concurrency as a legal heory

ha is poorly undersood and

inconsisenly applied by cours and

expers [15, 22]. Concurrency has beencharacerized as, a risk allocaion

principle ha operaes o disribue coss

associaed wih conemporaneous delays

on a saus quo basis [6]. Concurrency

operaes in his manner because

hisorically he cours could no unangle

he complicaed ac paerns causing he

delay.

Oseing delays are an exreme

ype o concurren delay. They arise

when he wo delays mee he crieria o

OFFSETTING

DELAYS

THE OWNERS FRIENDJohn C. Livengood, CFCC PSP

Absrac: When dealing wih conracor delay claims, owners o consrucion proj-ecs oen use heir superior bargaining power o srike a deal beer han heacs or he law would permi. This is especially rue in cases where i is possibleor he owner o argue sequenial delays by he conracor should ose earlierdelays caused by he owner, making boh delays non-compensable. These delayshave he special name o oseing concurren delays. Concurren delays, paric-ularly delays associaed wih perormance o non-criical work, are poorly under-sood by he cours and schedule analyss alike. Savvy owners use his lack oundersanding when negoiaing selemens o delay claims by conracors. Thisaricle discusses he mos recen echnical issues associaed wih concurren delay,and shows how conusion has made he legal rulings on concurren delay unpre-

dicable, hus srenghening he owners bargaining posiion and allowing or hepopulariy o oseing delays claims. An earlier version o his aricle was irspresened as manuscrip CDR.609 a he 2011 AACE Inernaional Annual Meeingin Anaheim, Cali. The auhor has made some updaes and revisions since hapresenaion and hey are included wih his prining.

Key Words: Concurren delay, orensic schedule analysis, oseing delay and

sequenial delay

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concurrency, bu occur a widely

separaed imes. To illusrae, he same

basic ac paern will be used in igures

in his aricle:

The projec was a wo-building

complex wih a planned

simulaneous sar on boh

Buildings A and B. Bohbuildings had planned a nine-

monh duraionhey were on

co-criical pahs and boh

acually ook 10 monhs o

complee prior o

commissioning. When boh

buildings were complee, here

was a join wo monh

commissioning period leading

o subsanial compleion.

Figure 1 depics he ollowing

scenario, ypical o how he oseing

delays are negoiaed: An aggrieved

owner and delayed conracor hold a

negoiaing session aer consrucion is

complee on a wo-building complex.

The owner acknowledges ha i had

delayed sie access or one monh on

Building A, resuling in an acual 10-

monh duraion or ha building.

Neverheless, he owner believed ha

unrelaed delays o one monh

associaed wih he conracors poor

perormance in compleing mechanical

work on Building B resuling in a 10-

monh duraion, which balanced ou he

iniial delay on Building A.

The owner reasoned ha even had

he delay o Building A no occurred, he

oal projec would have been delayed a

monh because o he conracors delayon Building B. The owner oered a non-

compensable ime exension o one

monh.

Under he ollowing deiniion, he

erm concurren does no carry he

generally undersood meaning o, a he

same ime. As he erm is used in many

cases, concurren delays may occur

during any par o he projec

perormance period, no necessarily a

he same ime.

The period o concurrency is

he period o projec

perormance, no jus he

period during which any

individual delay may have

occurred [4].

Raher, concurren means under his

consrucion he impac a he end o he

projec is he same or each delay [19].

Essenially, he delays ha are being

looked a and balanced agains each

oher can occur a any ime during he

projec. We will reurn o his iming

problem aer discussing he more

general requiremens or concurrency, as

described in he AACE Inernaional

Recommended Pracice 29R-03 (2011)

Forensic Schedule Analysis Practice

Guide [FSAPG 29R-03], Subsection 4.2[1].

Whas Required or Concurren

DelayWhile FSAPG 29R-03 quoes ive

deiniions o concurren delay, i does

no adop any o hem. Raher, he

FSAPG 29R-03 deines seven crierion, all

o which are needed or a concurren

delay, as lised below:

1. Two or more delays ha areunrelaed, independen [6];

2. Eiher would have delayed he

projec even i he oher delay did

no exis [16];

3. Two or more delays ha are he

conracual responsibiliy o

dieren paries, bu one may be a

orce majeure even [6];

4. The alleged concurren delay mus

be involunary [13];


Figure 1 Concurren Delay wih Oseing Delays Recognized

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5. The work associaed wih he

alleged concurren delay mus be

subsanial and no easily curable;

6. The delays, each o which absen

he oher, mus independenly delay

he criical pah [12]; and,

7. The delays mus occur during or

impac he same ime analysis

period.

Figure 2 depics a ypical concurren

delay siuaion. Building A had a one

monh delay because o owner-caused

sie access. Building B was iniially

delayed because he specialized

equipmen and crews needed or ha

building were unavailable. Each delay,

absen he oher, delayed acual

subsanial compleion, i.e., he evens

were on he criical pah. None o he

delays were volunary and none were

easily curableexbook concurrency.

COST ENGINEERING JANUARY 2012

Figure 2 Concurren Delay During Same Measuremen Period

Figure 3 Concurren Delay Along a Single Criical Pah

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The irs hree o he above crieriaare amiliar o all who have encounered

concurren delays and are generally

releced in he usually cied deiniions.

For exper analyss, much o he work o

esablishing or rebuing a concurrency

argumen revolves around he proo o

hese issues.

Equally imporan and discussed

only briely in he FSAPG 29R-03 is he

burden o proo associaed wih

concurrency. Concurrency is generally

an airmaive deense iniiaed aer

here has been an allegaion o delay [3,

6, 10]. Typically, one pary will allege

here was a delay, and he oher pary

will respond wih an allegaion o

concurrency. The pary iniially alleging

concurrency bears he burden o proo

or esablishing concurrency [8]. Then

he pary assering he original delay

oen presens is analysis showing a lack

o concurrency. As a pracical maer,

mos delay expers now rouinely

ideniy concurrency, or lack hereo, as

par o heir iniial analysis. FSAPG 29R-03 is wrien o relec ha ideniicaion

o concurrency is oen underaken as

par o he ypical schedule delay

analysis.

The ourh and ih crierion, added

by FSAPG 29R-03 in he 2011 ediion, are

common sense addiions. Crierion 4,

he concurren delay mus be

involunary is simply a relecion ha a

volunary delay oherwise meeing he

concurrency crieria would becharacerized as pacing, which is

discussed exensively in he FSAPG 29R-

03 in Subsecion 4.3 [1]. Crierion 5

relecs he pracical realiy ha neiher

an owner nor conracor should be

allowed o claim concurrency i he

alleged concurren delay is rivial.

The sixh crierion requires ha

boh alleged delays mus be on he

criical pah, even in he presence o he

oher delay. This is almos idenical o

he second crierion ha requires eiher

would delay he projec absen he

oher; however, here is a suble

dierence. Crierion 6 means you

canno jus subrac one o he delays o

see i he oher aecs compleion

because subracing one o he delays

changes he criical pah and could make

oher aciviy sequences criical [8].

So he es is ha boh delays have

o be on he as-buil criical pah. As

discussed below, his maer is one o he

key issues relaed o oseing delays.

The sevenh crierion herequiremen ha he delays be in he

same ime period is also discussed

laer in his aricle.

Oher Concurrency ConsideraionsFSAPG 29R-03 also discusses several

oher essenial issues associaed wih

concurrency he analys mus consider

when perorming an evaluaion. They

include:

Single or co-criical pahs;

Cause or eec; and,

Lowes loa or negaive loa

The irs issue is he need or co-

criical pahs in order o have

concurrency. Essenially, i asks i you

can have concurren delays when here

is only one criical pah? The answer is

Yes. Co-criical pahs are no required as

concurrency usually occurs when here is

only a single criical pah [6].

Concurrency in hese siuaions is more

closely associaed wih he mehod o

aciviy represenaion in he CPM

nework isel, and he ac ha such

neworks are only approximaions o he

real logic connecions beween

aciviies. As a resul, i is almos always

unnecessary and always unwieldy o pu

all he relaionships ino a schedule.

Such a schedule would be so large, even

on a moderae sized job, as o be

unusable. The soluion is o look a he

causes o he delay.For example, as shown in igure 3,

on a projec wih a single criical pah

saring wih he irs aciviy

mobilizaion, he owner is unable o

provide sie access on he required dae

o Building A. A he same ime and

unrelaed o he owners delay, he

conracor is unable o mobilize is crews

and equipmen, also o Building A. There

are wo concurren causes o delay o

Figure 4 Concurren Delay Under he Funcional Approach Wih Two Delays Wihin he Same Measuremen Period

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he single criical pah. These wo causes

could be depiced as separae aciviiesin he CPM nework prior o sar o

Building A criical pah. However, such a

level o deail is unnecessary in a CPM

even i i is necessary o ideniy and o

deermine concurrency. I is suicien o

recognize here are wo evens

(oherwise meeing he seven crieria)

causing a delay.

Closely relaed o his issue is he

second issue o cause or eec. Is he

concurrency being discussed associaed

wih he even ha causes he delay, or

he maniesaion o he delay isel?

This oen appears where here are non-

criical delays ha lead o a criical pah

delay. For example, assume a schedule

aciviy wih a planned duraion o seven

days has slow produciviy and exends

or anoher hree days or a oal

duraion o 10 days. The delay does no

manies isel unil he aciviy ails o be

compleed on he sevenh day. The

delays were earlier, bu he eecs o

hese delays do no appear unil he end

o he sevenh day. When is he delay orpurposes o deermining concurrency?

FSAPG 29R-03 does no ideniy a

preerred mehod in his siuaion, bu

his auhor believes ha i is generally

bes o measure concurrency a he

poin he delay is maniesed on he

criical paha he end o he sevenh

day in he example above. The

alernaive would be o invesigae he

iming o each o he causaive elemens

associaed wih he alleged delays. This

is oen impossible.FSAPG 29R-03 also ideniies ha

such an invesigaion may be impaced

by he placemen o measuring periods

since he causaive evens may occur

long beore he delay appears. The bes

soluion is o recognize here is no acual

delay a an aciviy level unil he aciviy

ails o complee on ime; however, a

deailed examinaion is sill required o

look a he causes o he delays since

hey aec he consideraion o pacing

and volunariness.

Regarding he hird issue, FSAPG

29R-03, Subsecion 4.2.D.2 has an

exensive discussion o he undamenal

issue o leas loa or negaive loa as i

relaes o criicaliy. The negaive loa

heory assumes criicaliy o any aciviy

ha has negaive oal loa relaive o a

conracual milesone. The negaive

loa approach has a cerain advanage in

ha conracors oen manage aciviies

wih negaive loa more closely and

recovery o hese aciviies is essenial o

he recovery o projec delay. The lowesloa pah heory provides or criicaliy

on he longes pah only, even i oher

secondary pahs are lae wih regard o a

conracual milesone.

Under his heory, all pahs shorer

han he longes pah (even hose wih

negaive oal loa) have posiive oal

loa wih respec o he longes pah

and are hereore non-criical. The issue

is so undamenal ha FSAPG 29R-03

ideniies i as an essenial consideraion

in ive o is nine delay analysismehodologies [1].

The dierence beween hese wo

heories has a signiican impac on

deermining concurrency. Under he

negaive loa heory, any aciviies wih

negaive loa occurring during he

measuremen period are poenial

candidaes or concurrency. This heory

suppors he applicaion o oseing

delays since any delay o negaive

aciviies would be a criical pah delay.

FSAPG 29R-03 ideniies ha mos

schedule delay analyss and FSAPG 29R-

03 isel generally ollows lowes loa

pah heory. This heory reduces he

poenial applicaion o oseing delays.

Same Time PeriodPerhaps he mos conroversial and

a he same ime mos imporan new

concep relaing o concurrency in

FSAPG 29R-03 are he conlicing

approaches o Funcional v. Lieral

Concurrency. Simply pu, i asks how ar

apar in ime can would-be concurrendelays be? This concep and

erminology was developed in FSAPG

29R-03 (2007) and while i had never

been separaely ideniied as an elemen

o concurrency, i has oen been an

underlying issue in cour cases [14].

Under he Funcional approach, he

delays mus occur in he same analysis

measuremen period. This means ha a

delay by he owner in he beginning o


Figure 5 No Concurrency Delay Under he Lieral Approach Wih Two Delays Separaed by One Day

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he measuremen period can be

concurren wih a delay by he

conracor in he end o he

measuremen period, see igure 4.

Under he Lieral approach he

concurren evens mus sar a he same

ime, bu need no be o idenical

duraion. I one o he delay evens

sars prior o he oher even, he irs

even creaes loa in he second even

prevening i rom being on he criical

pah [18]. While perec simulaneiy is

impossible, hey canno sar a exacly

he same ime, FSAPG 29R-03 recognizes

he measuremen period or mos

schedules is a day, so he alleged delays

mus sar on he same day. I he

measuremen period was an hour, as i is

in shu-down or ouage projecs, or a

week, as migh occur in cerain planning

projecs, he same rule applies, see

igure 5.The dierences beween hese wo

opposing approaches are ar-reaching.

The Funcional approach is closely

aligned wih an evaluaion period ha

oen coincides wih schedule updaes

by he conracor. Since mos

consrucion schedules are updaed or

inended o be updaed monhly, he

approach holds ha i he wo delays

occur in he same period and oher

seven crieria ideniied above are me,

here is concurrency. This approach

relecs he realiy o he monhly

updae, as well as he inheren

unreliabiliy in aemping o measure

evens oo precisely. Despie bes

eors, records rom he ield are oen

incomplee and do no measure evens

or progress wih daily accuracy. In mos

cases, he Funcional approach will

generae more days o concurren delay

because he ime period (generally a

monh) is relaively large. Under he

Funcional approach a delay in he irs

wo weeks o a monhly measuremen

period is concurren wih a wo week

delay a he end o ha same period,

assuming he oher concurrency

crierion are me.

Bu he Funcional approach also

has is disadvanages. The locaion o

he sar and end o he measuremenperiod used in he analysis has a

signiican impac on he deerminaion

o concurrency. I he dividing line

beween measuremen periods alls

beween he wo delays, here is no

concurrency. Figure 6 shows he

implicaions o he placemen o he

measuremen period and he alleged

delays. In Scenario 1, he wo delays all

in he same measuremen period,

resuling in concurren delays. In

Scenario 2, he delays, oherwise

idenical o he previous one, all in

dieren measuremen periods wih he

resul o hem no being concurren.

Oseing concurren delays, as we will

reurn o in a ew paragraphs, always

occur wihin he same measuremen

period, bu a measuremen period o

ha can be as long as he enire projec.

The Lieral approach also has

advanages and disadvanages. I

assumes ha boh planned and acual

aciviy measuremen is accurae o

wihin one day. As previously

menioned, his is oen no he case.

Ye, ypical CPM schedules are

developed, moniored, and updaed

wih a planned accuracy o a day, so i is

no unreasonable o measure o ha

accuracy.

Furher, in order o esablish hebasic seven elemens o concurrency, he

analys usually invesigaes he evens

surrounding he alleged delays in deail,

on a day-o-day basis, so as o esablish

he irs hree crieria. Once his

evaluaion has been made, i seems

absurd o hen disregard his deail in

characerizing non-simulaneous delays

as concurren.


Figure 6 Comparison o Two Delays and Two Dieren Measuremen Periods

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FSAPG 29R-03 akes no posiion on

wheher he Funcional or Lieral

approach is preerred. As discussed

below, he Funcional approach appears

o be more widely acceped in cour

decisions, bu a leas one exper reaise

published subsequen o he FSAPG 29R-

03 seems o suppor he Lieral approach

[23].

Concurren Delay is a Legal TheoryThere are wo conlicing viewpoins

in cour decisions regarding he ime

relaionship beween wo delay evens

[5]. The irs viewpoin adops a global

view o concurrency, one ha is

consisen wih oseing concurren

delays. These decisions ind sequenial

delays along he criical pah, even hose

ha are widely separaed in ime, are

concurren [7]. These delays ha occur

along dieren co-criical pahs in asequenial manner are concurren

because each would have delayed

compleion absen he oher. The

raional or his inding is ha he eec

o eiher individual delay is he same as

he combined eec o boh delays as

shown in igure 1.

A more complicaed siuaion

however occurs when he wo

sequenial delays occur along he same

criical pah. For example, assume he

owner delays Building A commencemen

by one monh. Laer, he conracor

delays work on Building A or a monh.

Since boh delays are on he same criical

pah hey migh be considered

concurren under a global view o

concurrency. However, he overall delay

o building A is now wo monhs, wih

each pary responsible or one monh.

This appears o be a sequenial non-

concurren delay. I is unclear rom any

repored cases wheher his would be

considered concurren, see igure 7.

These cases inding sequenial

concurren delay seem o generally be

older cases (some daing o he 1930s)

where he acual presenaions were

insuicien o allow apporionmen o

he delays beween he paries [14].

They do no disinguish beween co-

criical and single criical pahs. Onehopes ha wih modern CPM analysis

beer prepared cases resul in hese

oseing delay decisions no longer

being valid.

The second viewpoin in repored

cases discouns he global view o

concurrency, hus prevening indings o

concurren oseing delays [5]. Ye,

hese cases do no disinguish beween

lieral and uncional concurrency, eiher

implicily or explicily. In hese cases, he

cours rely on he ollowing wo

overlapping approaches o reach heir

decisions.

In he irs approach, hey

apporion delay responsibiliy

based on he acs and delay

analysis presened [20]. Such

an allocaion, i suicien,

permis a day-by-day allocaion

o responsibiliy. The cours

have ound ha since he

conracor is generally

aemping o prove he delay, i

mus generally prove

apporionmen beween he

owner and conracor, and

ailure o esablish

apporionmen will resul in a

inding agains he conracor

[24].

The second and more

successul approach is o sricly

consrue he criical pah. Such

a perspecive, given suicien

deail, will lead o he lieral

approach o concurrency.

Recall ha under he lieral

approach, he criical pah delay

ha sars irs creaes loa in


Figure 7 Oseing Concurren Delays Along a Single Criical Pah

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he remainder o he schedule.

In Sana Fe, Inc. [21], he board

saed: [I] he [governmens]

concurren delays aeced only

work ha was no on he criical

pah hey are no delays

wihin he meaning o he

[concurrency] rule This

sric approach has been

ollowed in oher cases, bu

only when here is suicien

evidence o suppor such an

analysis [17].

Are Oseing Delays Concurren

Delays?So now we know ha owners can

argue ha ime-separaed delays can be

concurrenly oseing delays because

according o some judicial decisions,

sequenial delays along he criical pah

can be considered concurren [11].Owners generally posi his siuaion in

negoiaions because owners oen have

poor schedule conrol policies, or worse

have airmaive policies ha leaves

deerminaions o delay quaniicaion

and enilemen unil he end o he

projec.

Recall in our iniial discussion, he

owner aemped o ose a delay in sie

access wih a subsequen conracor

delay. This aemp oen occurs

because he owner ails o resolve delays

as hey occur. The mos commonreasons are:

1. The owner, hrough poor

managemen pracices, simply

ails o ac on a conracors

delay reques. Such ailures

generally resul in

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