Even where a contractor can prove an owner-caused delay, findings of concurrency can undermine entitlement to both compensation and extensions of time. Indeed, contracts increasingly allocate all risk of concurrency to contractors.
Concurrency is readily identified through retrospective delay analyses, often considered the “gold standard”. Leveraging the benefit of hindsight, owners frequently argue that “but for” their delay, the contractor would still not have completed on time. It is not clear, however, that the “but for” test is applicable at law, where recovery for breach of contract focuses instead on “expectation damages”.
This session will return to basic breach of contract principles to examine how contractors can limit findings of concurrency through disciplined contract administration and claims management, including timely requests for extensions of time supported by prospective delay analyses.
Framed through the lens of expectation damages, contractors can argue that entitlement to an extension of time must be assessed when the delay occurs, based on contemporaneous, forward-looking analysis. On this approach, contractors may establish excusable and compensable delay even where later, after-the-fact analysis suggests concurrency.
