Concurrent Delays Dissected

(c) 2013. Navigant Consulting

In its most recent newsletter, "Insight from Hindsight," Navigant Consulting's Tom Peters provided a fascinating article entitled "Dissecting the Doctrine of Concurrent Delay."  I have linked the article here so that we can discuss it and so that you can read it more closely.  

In the article, Mr. Peters first points out that lawyers and schedulers differ on what effect concurrent delays might have both on the excusability and the compensability of various concurrent delays.  As the table makes clear, nothing is clear when it comes to answering a number of the key questions.  For example, is a delay that is excusable actually excused if the delay occurs concurrently with a non-excusable delay? Some commentators say it is, while others say it is not. 

Mr. Peters then looks at various boards of contract appeal decisions and -- no surprise -- finds similarly conflicting points of view.  As a practice issue, if major articles and treatises cannot agree and if the cases are all over the place, how does an attorney advise his or her client correctly?

This also raises another issue for discussion: with the increase of technology usage in our daily lives, will construction companies be able to harness this technology to improve their as-built and as-happening schedules?  For example, with smart phone cameras now being nearly ubiquitous, will workers be required to take photos every hour to show progress on their work?  Should contractors or owners expect that kind of documentation when faced with delay claims?

Let's hear from you in the comments.