The concurrency rule is not in the book.

The concurrency rule is not in the book

Two delays overlap. One is the employer's fault, one is yours, and both would have pushed completion out on their own. Who pays for the fortnight?

That question has generated more argument, more expert reports and more litigation than anything else in construction delay. So it is worth knowing what the 2017 conditions say about it.

They say the answer will be found in the Special Provisions.

That is not a failure of drafting. It is a deliberate decision to leave the most contested question in delay to the people writing the particular contract — and it means the rule that governs your job is sitting in a document Week 2 told you ranks fifth. Which on a great many projects is blank.

Five causes, and none of them is “they delayed us”

Before the hard case, the ordinary one. Sub-clause 8.5 sets out what actually entitles you to more time, and the list rewards being read slowly.

A variation is the first, and it carries a useful exemption: for the time effect of a variation you don't have to go through the claims procedure at all. The second is any other sub-clause of the conditions that gives an entitlement to time — which, as Week 8 put it, means naming the clause rather than describing the grievance.

The third is exceptionally adverse climatic conditions, and this is where people over-claim. It is not a judgement about how bad the winter felt. The conditions have to be Unforeseeable — the capital letter again — measured against the climatic data the employer supplied under sub-clause 2.5 and the published data for that location. It is a documentary test, and either the data supports you or it doesn't.

Fourth is shortages of people or goods brought on by epidemic or governmental action, again on the Unforeseeable test. Fifth, and broadest, covers anything the employer's side does that delays, impedes or prevents you — and the employer's side expressly includes its own personnel and the other contractors it has put on the site.

There is also time available where measured quantities move under the measurement clause — the remeasurement link from Week 7, showing up in the time column as well as the money one.

If and to the extent that

Six words in the opening line of 8.5 do a lot of work, and most claims are argued as though they weren't there.

You are entitled to time if and to the extent that completion is or will be delayed. Not if the event happened. Not if the event was serious. To the extent that it pushed completion.

Two things follow. An event that consumed float without moving completion produces no extension, however annoying it was. And an event that delayed completion by nine days entitles you to nine days, not to the four weeks the event lasted. Entitlement is measured at the finish line, not at the event.

There is also a protection attached that runs entirely your way. When determining an extension, the Engineer reviews the previous determinations and may increase the total — but may not reduce it. Time already granted stays granted. That makes an early, modest, well-evidenced extension a much better asset than a large one argued at the end, because it can only grow.

Where concurrency actually lives

Now back to the overlapping fortnight.

The conditions say that where a delay the employer is responsible for runs concurrently with one you are responsible for, your entitlement is assessed under the rules and procedures in the Special Provisions. And if nothing is stated there, it is assessed as appropriate, with regard to all the relevant circumstances.

Read what that means on a live job. If somebody drafted a concurrency rule into your contract, that rule governs, and it may be considerably harsher or softer than anything you assumed. If nobody did, there's no rule — there is a judgement, made by the Engineer under Week 3's machinery, with the words “as appropriate” as the only guidance.

So the first thing to do about concurrency is not to learn a theory of it. It's to find out which of those two situations you're in, and the answer is four pages into a document most people never open.

The programme you never took seriously

All of this depends on being able to show what completion would have been without the event, and that brings the programme into the contract as a document rather than a management tool.

You have twenty-eight days from the commencement notice to submit the initial programme, prepared in the software the Specification names. And there's a continuing duty that gets forgotten: whenever a programme stops reflecting actual progress, or stops being consistent with your obligations, you submit a revised one.

That is Schedule Week 17 as a contractual requirement rather than good practice. A programme that has been updated perfectly and is completely wrong isn't just a bad management tool; it is a failure to do something the contract told you to do, and it is the document your extension of time will be measured against.

The warning both sides owe

One more provision, short and almost entirely unused.

Each party has to warn the other, and the Engineer, about known or probable future events that might affect the workforce, the finished works, the price or the programme. The Engineer owes the same warning to both parties. And the Engineer may respond by asking you for a proposal to avoid or reduce the effect — the request-for-proposal route from Week 7, arriving before the damage rather than after it.

It's a mutual duty, which is unusual and worth noticing. If the employer knew a permit was going to be late and said nothing, that is not merely unhelpful. It is a contractual obligation nobody performed.

Practical insight

Four things, in order of how quickly they pay back.

Open the Special Provisions today and find out whether a concurrency rule exists. Write the answer on the front of your delay file, because every conversation about overlapping delay for the next two years depends on it and almost nobody in the room will know.

Second, check your programme obligations. Was an initial programme submitted inside twenty-eight days, in the right software? Has a revised one gone in since it stopped matching reality? If the honest answer is no, that is a gap in the document your entitlement will be measured against.

Third, claim early and modestly rather than late and large. The determination can only be increased, never reduced, so an extension secured in month four is a floor you build from, not a ceiling.

And start using advance warning. One short note when you first see something coming — a permit, a drawing, a third-party approval — costs nothing, discharges an obligation you already have, and occasionally produces the request for a proposal that stops the problem entirely.

Key takeaways

✔ Sub-clause 8.5 gives time if and to the extent that completion is delayed. Consuming float isn't delay, and a four-week event may buy nine days.

✔ Five causes, and none of them is a general grievance. Two of them turn on Unforeseeable, the same defined term that decided the rock.

✔ Exceptionally adverse weather is tested against the employer's climatic data and published data for the location, not against how the winter felt.

✔ For the time effect of a variation you don't have to run the claims procedure.

✔ The Engineer may increase but may not decrease a total extension. Time granted early cannot be taken back.

✔ Concurrency isn't decided in the General Conditions. It goes to the Special Provisions, and where nothing is written there, it is assessed as appropriate in all the circumstances.

✔ The programme is a contractual document: initial submission within twenty-eight days, and a revised one whenever it stops reflecting actual progress.

What's coming next

Time has a second half. Everything this week assumed you get to argue about how much delay there was — but that argument only happens if the notice went in, and the periods in this contract are shorter and stricter than most people carry in their heads. Next week we put all of them in one place: every notice period in the conditions, what starts each clock, what form the notice has to take, who it goes to, and which of them kill an entitlement outright when they are missed. It's the least interesting page in this track and the one most worth pinning to a wall.