Concurrent delay is one of the most fertile areas for dispute in construction claims, and one of the most frequently litigated topics in Middle Eastern arbitrations. Core Principle 10 of the SCL Delay and Disruption Protocol addresses the effect of concurrent delay on entitlement to an extension of time.
The Protocol defines true concurrent delay narrowly: it is the simultaneous occurrence of two or more delay events during the same period, where one is an employer-risk event and the other is a contractor-risk event, and both events independently affect the completion date. True concurrency in this strict sense is comparatively rare; what is more common is sequential delay, where two delay events occur in close succession but only one is on the critical path at any given time.
The Protocol's recommended approach to true concurrent delay is that the contractor should be entitled to an EOT for the employer-risk delay, notwithstanding the contemporaneous contractor-risk delay. The reasoning is that the contractor would have been delayed in any event by the employer-risk event, and should not be deprived of an EOT by the coincidence of its own delay.
However, the Protocol distinguishes EOT entitlement from prolongation cost entitlement. Even where the contractor obtains an EOT for concurrent delay, it should not generally recover prolongation cost for the period of concurrency, because it would have incurred those costs in any event due to its own delay. This 'time but no money' outcome is now a familiar feature of Middle Eastern construction awards.
The legal treatment of concurrent delay varies by jurisdiction, and the contractual provisions in many Middle Eastern projects expressly modify the Protocol's position. Bespoke amendments to FIDIC frequently introduce 'apportionment' or 'dominant cause' tests that allocate concurrent delay between the parties on a fact-specific basis. A delay expert witness must be familiar with both the Protocol's approach and the contractual framework that applies to the particular project.
Practically, the analysis of concurrent delay requires meticulous identification of the critical path at each point in time, careful classification of the cause of each delay event, and disciplined modelling of the 'but for' position. It is technical, time-consuming and forensically demanding work — but it is at the heart of many of the largest construction disputes in the region.