Closely related to the EOT analysis of concurrent delay is the question of compensation for prolongation cost during periods of concurrency. Core Principle 14 of the SCL Delay and Disruption Protocol provides the framework: even where the contractor is entitled to an EOT for concurrent delay, it generally cannot recover prolongation cost for the period of concurrency.
The reasoning is straightforward as a matter of damages law. Prolongation cost is recoverable only if it is caused by an employer-risk event. Where the contractor is independently delayed by its own breach during the same period, the contractor would have incurred those time-related costs in any event, and the employer-risk event has not caused additional cost.
This 'time but no money' outcome can be uncomfortable for contractors, but it reflects a principled application of causation. The contractor receives the protection it needs (relief from liquidated damages and a new completion date) but does not obtain a windfall in the form of compensation for cost it would have incurred in any event.
The Protocol also addresses the related question of apportionment, where some jurisdictions and some contractual provisions permit a partial recovery of prolongation cost on a proportionate basis. In the Middle East, governing law and the specific contractual wording are critical: a delay expert witness and a quantum expert must work closely with legal counsel to determine the appropriate treatment.
Importantly, the 'time but no money' result applies only to the period of true concurrent delay. Periods of employer-only delay before, between or after the concurrent period typically remain compensable in the normal way. Careful identification of the concurrency window is therefore essential, and is a frequent area of expert disagreement in arbitration.
For employers, the principle in Core Principle 14 is a powerful defence to inflated prolongation cost claims, particularly where the contractor's own performance has contributed to the delay. For contractors, it is a reminder that good performance — and good records of that performance — is the best protection against the dilution of an otherwise valid claim.