Concurrent Delay in FIDIC: the principle of time but no money

Concurrent delay is one of the most sensitive issues in delay claims. It arises when a delay at the Employer’s risk and a delay at the Contractor’s risk affect completion during the same period.

The practical result is often described as time but no money. The Contractor may receive an extension of time to avoid delay damages, but not recover prolongation costs for the same period.

This is not a mechanical rule for every case. It must be tested against the contract, Particular Conditions and facts.

What real concurrent delay means

Not every simultaneous problem is concurrent delay.

True concurrency usually requires:

• two or more independent events;
• different risk owners;
• impact on completion or the critical path;
• overlapping delay effect;
• no clear basis to say that one event absorbed the other.

If an Employer event and a Contractor problem occurred in the same month, but only one affected the critical path, the analysis should not be forced into concurrency.

Why money is the difficult part

EOT protects the Contractor from liability for late completion. A money claim requires a separate basis.

If the Contractor was also delaying the critical path during the same period, the Employer may argue: even without our event, you would not have finished on time. That is where “time but no money” becomes commercially important.

Possible result:

• EOT is granted;
• delay damages are removed or reduced;
• prolongation costs are rejected or reduced.

FIDIC 2017 and Particular Conditions

Under FIDIC 2017, concurrent delay may be addressed by rules in the Particular Conditions. It is therefore unsafe to analyse the issue only from the General Conditions.

Before preparing the claim, check:

• whether the contract contains a concurrent delay clause;
• how critical delay is defined;
• whether apportionment is allowed;
• whether a delay analysis method is prescribed;
• how notices and particulars must be submitted;
• whether MDB or Employer-specific requirements apply.

If the Particular Conditions are silent, the team usually turns to governing law, project practice and analytical guidance such as the SCL Protocol.

Methods that help

Concurrent delay requires a method that shows critical path movement over time.

Useful tools include:

• windows analysis;
• time impact analysis;
• as-planned vs as-built only as a supporting tool;
• contemporaneous programme updates;
• event-by-event critical path review.

A weak strategy is to draw a broad as-built chart at the end of the project and say that “everyone delayed everyone”. That does not prove causation.

Records needed

Concurrency is almost impossible to analyse without contemporaneous programme records.

Keep:

• regular programme updates;
• narrative for each update;
• access, approvals, drawings and RFI logs;
• contractor resource records;
• mobilisation, procurement and subcontractor evidence;
• resequencing decisions;
• mitigation correspondence.

It is especially important to record contractor-side problems honestly. Hiding them usually damages the credibility of the whole analysis.

Practical claim approach

A good concurrent delay analysis answers by window:

1. What was the critical path in this period?
2. Which Employer event affected that path?
3. Which Contractor delay existed in the same period?
4. Were the events independent?
5. How do the Particular Conditions allocate consequences?
6. Why is the requested relief logical for this window?

This is stronger than arguing broadly about who “caused the project delay”.

FAQ

Does concurrent delay always mean time but no money?

No. It is a common practical result, not a universal doctrine. The contract, governing law and facts may lead elsewhere.

Can money still be recovered?

Sometimes, if the compensable delay can be separated, the cost impact is independently proved, or the contractor delay was not critical in the relevant window.

What matters most?

Reliable programme updates and honest event-by-event explanation. Without them, the analysis becomes a retrospective position.

Bridge Consult helps review delay submissions, Particular Conditions and records before the position goes to the Engineer, DAAB or arbitration.

Sources and further reading

• Society of Construction Law, Delay and Disruption Protocol, 2nd Edition, February 2017.
• FIDIC, Conditions of Contract for Construction, 2017 edition.
• See also: EOT and delay analysis and Prolongation Costs under FIDIC.