Concurrent Delays and Apportionment of Damages

William Ibbs, Long D. Nguyen, Lonny Simonian
2011 Journal of construction engineering and management  
This paper focuses on the subject of concurrent delay from a general contractorsubcontractor perspective. When there is a concurrent delay by multiple subcontractors, or between the general contractor (GC) and other subcontractor(s) (subs), there has not been a uniform approach as to how the liquidated damages (LDs) are apportioned. Previous research seems to ignore this issue. This paper first reviews some relevant court cases. Using a warehouse project as a case study, it then examines
more » ... hen examines different practices that the GC could take in apportioning damages of concurrent delays to both him/herself as well as to the responsible subcontractors. Results are very inconsistent between and within the apportionment practices. This supports an alternative hypothesis that apportionment is an important issue. Practitioners should specify which apportionment practice will be used and under what circumstances it will be applied in their subcontracts. Researchers may develop a more consistent and reliable approach for this type of apportionment. A c c e p t e d M a n u s c r i p t N o t C o p y e d i t e d 3 2000) . This paper first reviews the literature of concurrent delays and some relevant legal cases. It then proposes and examines the different approaches that the GC could take in apportioning damages of concurrent delays to both him/herself as well as to the responsible subcontractors. A hypothetical warehouse construction project where the GC would be accessed LDs is used to demonstrate the proposed apportionment approaches. That is, the objective of this paper is to show that different approaches yield different results and that apportionment is a complicated and judgmental issue. The industry practitioners would benefit from understanding different approaches presented in this paper and choosing an appropriate one for their subcontracts. Concurrent Delays Concurrent delays occur frequently, particularly at the peak of a project when multipleresponsibility activities are being performed simultaneously (Baram 2000) . Analysis of schedule delays takes a major leap in complexity when there are multiple sources of delay with interrelated impacts (Galloway and Nielsen 1990; Kutil and Ness 1997). This section reviews the concept of concurrent delays, conditions of its occurrence, and apportionment of concurrent delays. The Concept of Concurrent Delays Schedule delay analysis is among the most challenging tasks in claims-related issues. This analysis becomes more complicated when concurrent delays have occurred in the project. Navigating the seas of concurrent delays is possibly the most challenging task faced by a construction lawyer (Hughes and Ulwelling 1992). determination of whether three key factors exist: (i) the delays are critical; (ii) the delays are independent; and (3) the delays occur during the same time period (Boe 2004). More broadly, Ponce de Leon (1987) points out the occurrence of concurrency in construction as follows:  Two unrelated delays taking place in an overlapping timeframe are truly concurrent only if both delays fall on parallel critical paths.  Two unrelated delays arising at quite different timeframes are ultimately concurrent if they fall on two as-built critical paths. A c c e p t e d M a n u s c r i p t N o t C o p y e d i t e d 21 circumstances apportionment analysis will be applied. Future research is needed to develop a more reliable method for this kind of apportionment.
doi:10.1061/(asce)co.1943-7862.0000259 fatcat:lebavymhlbathglqzsi3oit2wa