Say the Employer was delayed in providing access in some section. Also, the Contractor has some delays in the accessible sections. What can be a reasonable approach in treating this type of event?
Broadly speaking there is no such thing as “concurrency” under any of the ECC contracts. Whilst I can dream up a situation where two events happen at exactly the same time, in most cases one of the events will have happened or be known about first. You assess the first one first and then see the impact upon planned Completion. Then you assess the second event and see if that further impacts planned Completion. If it does, then you are entitled to move Completion Date - if not you cant.
Put it simpler - if there is a two week critical Contractor delay, and one week later a two week Employer delay that runs parallel with it (at the same time as Contractor delay) then there is no entitlement to move Completion date.
If a two week Employer delay (CE) occurs first moving planned Completion Date by two weeks (and hence Completion Date once CE is implemented), followed very soon by a Contractor delay that runs parallel, this would not further move planned Completion.
The Society of Construction Law has defined concurrent delay as ‘the occurrence of two or more delay events at the same time, one an Employer Risk Event, the other a Contractor Risk Event, and the effects of which are felt at the same time.’
If true concurrency happened, how does the ECC contracts deal with this? Or would we be looking at a common law resolution to the matter?
True concurrency will next to never ever happen. One event will have happened first, and then you assess the extra over affect of the second event upon the first event. In very simple terms I say concurrency would not happen (and thankfully I have heard lawyers backing me up on this point).
The SCL protocol is all well and good, but can not be taken verbatim as it does not consider the NEC contract clauses that would therefore change the rules of assessment.
Hi Glenn, thanks for the reply. Just wondering which date is important for the order of the delays. For example, the Contractor has delays on the design, (as Subcont.) you realized the wrong design in Jan 2020, but you need this design by June 2020 on your programme. And you have a site delay which prevents you to start the design related works, this delay occured in March 2020. What would be your approach on this?