Red construction cranes dominate the skyline in the City of London.

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John Livengood Navigant, San Francisco

Concurrency world tour

We start our world tour of concurrent delay where much of the world’s construction law was (and is) developed, England. Legal principles developed in England and other common law countries dominate triers of fact decisions concerning construction throughout the world. Even in noncommon law countries, the ideas developed in common law countries with reported decisions and published reasoning, are used as models on how to resolve construction disputes, even though that exact issue may not be covered by the code-based laws that are used in that country. It is not surprising, therefore, that there is great commonality between common law and non-common law countries as to how to treat particular events on a construction site. This is primarily because many international and domestic construction contracts throughout the world are based on standard legal contract forms developed in common law countries. Moreover, many of the principal players in international construction contracts have a history of working with contracts that are based on the law of common law countries. Lastly, there is a great commonality because there are more legal decisions with published reasoning coming from common law countries.

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he legal concept of ‘concurrent delay’1 seems to have arisen in England and other common law countries. Although concurrent delay’s exact genesis is unclear, it has common underlying theories even if jurists and commentators struggle to provide coherent explanations for concur rent CONSTRUCTION LAW INTERNATIONAL Volume 11 Issue 1 March 2016

delay theory.2 In fact, concurrent delay is sufficiently difficult to explain, that even within a single country, there are sometimes conflicting approaches that remain poorly explained and inconsistently applied. Despite numerous judicial decisions, neither the English nor any other country or legal system 9

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has a coherent or comprehensive approach to the consideration of concurrent events. What is concurrent delay? Not surprisingly, given the complexity of concurrent delay theory, there are several definitions: ‘…Concurrent delay is used to denote a period of project overrun which is caused by two or more effective causes of delay which are of approximately equal causative potency.’3 ‘If there are two concurrent causes of delay, one of which is [the responsibility of the Employer], and the other is not, then the contractor is entitled to an extension of time for the period of delay caused by the [event] notwithstanding the concurrent effect of the other event.’ 4 ‘True concurrent delay is 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.’ 5 While there are significant divergences on many factors of concur rent delay, there is near-universal agreement on the effect of concurrent delay as reflected in the common law concept of ‘time but no money.’6 This short-hand description has three components: • the contractor gets a time extension for the period of delay; • the contractor is not entitled to any compensation for the delay; and • the employer is not entitled to collect either liquidated damages or actual damages for the period of delay.7 However, there are at least two major elements concerning concurrent delay theor y in controversy: (1) do the events need to occur ‘at the same time’; and (2) can there be apportionment between the delays based on their relative importance? Generally, English law seems to have nearly reached a consensus on certain aspects of concurrent delay, as reflected in Delay and Disruption Protocol by the Society of Construction Law (SOCL).8 The positions put forward by the SOCL are reflected in the English High Court case of Walter Lilly & Company Ltd v Gile Patrick.9 This case endorses the approach as reported in Henry Boot (UK) Ltd v Malmaison Hotel (Manchester) Ltd and rejects the alternate Scottish approach, discussed 10

below. The Malmaison approach has been endorsed as follows: ‘If there are two causes, one the contractual responsibility of the Defendant and the other the contractual responsibility of the Plaintiff, the Plaintiff succeeds if he establishes that the cause for which the Defendant is responsible is the effective, dominant cause. Which cause is dominant is a question of fact, which is not solved by the mere point of order in time, but is to be decided by applying common sense standards.’10

While there are significant divergences on many factors of concurrent delay, there is nearuniversal agreement on the effect... as reflected in the... concept of ‘time but no money’. The issue of the events occurring at the same time was addressed and rejected in Royal Brompton Hospital NHS Trust v Hammond & Others. The English court specifically discussed the need for the alleged concurrent events to coincide, and concluded they did not except for their impact on completion, commenting that, ‘[i]t should not matter whether the shortage of labour developed, for example, two days before or two days after the start of a substantial period of inclement weather; in either case the two matters operate concurrently to delay the completion of the works.’11 On the issue of apportionment between the parties, the English courts in the Malmaison case and its successors generally rejected the concept of allocating delay responsibility through some evaluative process of the two concurrent delays.12 However, the contrary view on apportionment of delay responsibility is represented by the Scottish case, City Inn Ltd v Shepherd Construction Ltd.13 While ‘apportionment’ had been argued and considered previously in English cases, such an approach had been generally distinguished.14 In 2007, the City Inn case took a different approach. The Scottish judge concluded that the delay between the concurrent employer and contractor events should be segregated such that the degree of culpability involved in each of the causes of the delay and the significance of each of the factors in causing the delay.15

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Credit: Rainer Lesniewski/Shutterstock.com

An exhibition centre under construction in Frankfurt, Germany.

Moving to the continent Our world tour continues in Europe. Since concurrent delay is essentially a common law theory, it is of little surprise that codebased cases in most of the European courts and arbitrations have little or no experience as regards the discussion of concurrency. If the contract in use on the project is silent on concurrency (as virtually all are), the issue of concurrency seldom arises. In such a situation, if the expert were to present a concurrency argument, it is generally presented as the most compelling ‘story’, where the more significant of the two competing delays will likely prevail. This is vaguely similar to the English law concept of the ‘dominant cause’.16

The concept of ‘time but no money’ can be argued based on the particular facts of the case... but reference to English-style reasoning will probably be rejected. While the country specific codes vary greatly, even the more detailed codes, such as the German Civil Code – BGB17 – provide no detailed instructions or guidance on CONSTRUCTION LAW INTERNATIONAL Volume 11 Issue 1 March 2016

time-related disputes. However, it would seem that the concept of employer ‘hindrance’ in a contractor’s ability to advance the work would be sufficient to secure a time extension.18 This is relatively similar to the English ‘prevention principle’,19 which generally assures a contractor a time extension of the period of time the employer delays them. However, these are just observations of the author as there is no evidence that European codebased legal systems recognise concurrent delay on an organised basis. It also seems clear that the FIDIC forms of contract, commonly used throughout Europe provide several bases for time extensions.20 Those bases are predicated on an underlying legal entitlement of the jurisdictional law. Again, there is no specific entitlement in FIDIC (or other standard contract forms used in Europe) allowing concurrent delay. The general conclusion is therefore that the concept of ‘time but no money’ can be argued based on the particular facts of the case and its merits, but reference to English-style legal reasoning, as regards concurrent delay, will probably be rejected in courts and arbitrations utilising code-based legal systems.21

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The Middle East The Burj Khalifa, in Dubai, United Arab Emirates, is the world’s tallest artificial structure, standing at 829.8m.

Disputes involving programme delay in the Middle East are generally decided under the various civil codes developed by the respective countries, all under the guidance of Sharia law. In arbitrations, these are often interpreted under the terms of common law style contracts and through the lens of the arbitrators that are often familiar with common law considerations. In those situations, it is probable that some of the concurrency concepts of England, Scotland and the US might be applied. Further, the widespread availability and use of the SOCL Delay and Disruption Protocol means that the concepts reflected therein are likely to be considered, if not strictly followed. However, like other code-law countries, there is no code-based guidance on concurrency.

This overarching directive of ‘good faith’ is of course present in common law countries, but it also provides wide latitude in making decision based on Sharia law.

Credit: William Cushman / Shutterstock.com

For example, under the UAE Civil Code Article 246(1), ‘[t]he contract must be performed in accordance with its contents, and in a manner consistent with the requirements of good faith.’22 This overarching directive of ‘good faith’ is of course also present in common law countries, but it provides wide latitude in making decisions based on Sharia law. Further, Articles 290 and 291 of the UAE Civil Code provides specific authorisation for the triers of fact to consider all the associated facts, weigh relative responsibilities, and apportion results:23 ‘Article 290 – It shall be permissible for the judge to reduce the level by which an act has to be made good or to order that it need not be made good if the person suffering harm participated by his own act in bringing about or aggravating the damage.’ ‘Article 291 – If a number of persons are responsible for a harmful act, each of them shall be liable in proportion to his share in it, and the judge may make an order against them in equal shares or by way of joint or several liability.’ 12

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Articles 290 and 291 provide triers of fact using UAE laws with the ability to consider detailed programme delay issues, such as concurrency on a ‘fairness’ basis, rather than some of the more obscure tests evident in the ‘but for’ test of ‘Malmaison’,24 or some of the other equally obscure arguments present in US decisions on these matters. It seems likely therefore that the apportionment of responsibility present in the City Inn case,25 and much of the US law, might be applied. Africa Unfortunately, there is even less known as to how concurrency is considered in Africa. While arbitral tribunals applying common law reasoning can find concurrency in line with English or US law when appropriate, the issue has arisen so seldom that there is no real basis for drawing conclusions. Similarly with the treatment in the Middle East, the code-based legal systems may, when the issue is presented, try to be fair and allocate responsibility based on the facts.

South-East Asia In non-common law countries in South-East Asia, where there is no history of dealing with concurrent delay and little experience in detailed forensic programme analysis, it is reasonable to surmise that concurrency’s treatment would be similar to European code-based legal systems. In at least one common law country, Singapore, there has been recognition that concurrent delay is an important programming issue, though they have yet to decide a case directly involving concurrency. In Multiplex Constructions Pty Ltd v Sintal Enterprises Pte Ltd,26 the court opined that: ‘If both Sintal and LKC had caused delays to the project, Multiplex should have apportioned the loss between the two. As it did not do so despite the fact that there were overlapping periods of delay, its setoff notices were inaccurate.’ 27 Since this dicta is part of the case dealing with supporting the validity of an arbitral award, it is unclear if such apportionment would be followed if or when the issue of

An aerial view of the new Botanic Gardens in Singapore.

Credit: Philip Bird LRPS CPAGB/Shutterstock.com

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concurrency is directly brought forward. In a later case dealing with concurrency, the Singapore court found that delays for which time extensions were contemporaneously granted, were at least concurrent with other causes of delay. 28 The decision is a little muddy as to whether these events were concurrent, and the court seemed to simply be suppor ting the contemporaneous finding of delay (which was largely a weather delay). Because it was a force majeure weather delay, the issue of compensability seems not to have been particularly relevant. It seems reasonable to believe that when a Singapore court does directly address concurrency, it may well be following the trend in Scotland and the US (discussed below) supporting apportionment in cases of concurrency, as it implies in Multiplex Constructions Pty Ltd v Sintal Enterprises Pte Ltd.29

Credit: PomInOz/Shutterstock

Australia Australia has relatively little law on concurrent delay. It does, however, have a series of standardised industry contracts. Unusual for such standard form of contracts is a special anti-concurrency clause that reads: ‘Where more than one event causes concurrent delays and the cause of at least one of those events, but not all of them, is [an Employer-caused event], then to the extent that the delays are concurrent, the Contractor shall not be entitled to an extension of time for Practical Completion.’30 This manifestly employer-friendly provision seems to have not yet been tested by an Australian court. However, the two leading cases dealing with concurrent delay seem to come to contradictory conclusions. The first, Thiess Watkins White Construction Ltd v Commonwealth,31 found that two sequential events (mischaracterised as concurrent), the first of which was an employer caused delay (a ‘relevant event’), and the second, a force majeure event, were both excusable and compensable. This author has no problem in believing that if this situation arises again, the Australian court will overturn this case since it not only fails to follow most decisions in other common law countries (particularly England), but also provides identical results for two manifestly different types of delay. The second case, Armstrong Construction v Council of the Shire of Cook,32 came to the opposite conclusion, but its clarity is muddied by the apparent distinction that the second event was contractor caused, not a force majeure event. It therefore seems likely that Australian courts will follow the reasoning of a third case, March v Stramere,33 which opined that the proper test should be ‘common sense’ when evaluating delay events, thus anticipating the later English Malmaison case,34 following the concept of a ‘dominant cause’ and ‘applying common sense’. South America

Construction at Barangaroo in Sydney.

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Like Europe, there is no code-based law on concurrency in South America. Further, many South American countries have a relatively short histor y of applying their legal codes to complicated construction cases, though the tremendous growth of construction in South America is sure to change this. It is therefore difficult to precisely predict how legal proceedings,

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The recently constructed Museum of Tomorrow in Rio de Janeiro, Brazil.

including arbitrations and court proceedings, would consider a complicated delay case involving concurrent delay. The best guess is that such claims would be treated much as they are in European codebased countries. The concept of ‘time but no money’ could be argued based on the particular facts of the case and its merits, but reference to English style legal reasoning will probably be rejected. Concurrency in the United States We finish our world tour of concurrency in the US which has more repor ted cases on the topic than the rest of the world combined. Unfortunately, all that reporting has not appreciably clarified major elements of concur rent delay theory.35 The most common definition of concurrency in US law is similar to the following: ‘Concurrent delays occur when there are two or more independent causes of delay during the same time period’. 36 Yet courts and commentators recognise:

The courts almost always apportion the delays based on detailed programme analysis, and assign delays to the responsible party. ‘The exact definition of concurrent delay is not readily apparent from its use in contract law, although it is a term which has both temporal and causation aspects. Concurrent delays affect the same ‘delay period [.]’… Because concurrent delays which do not CONSTRUCTION LAW INTERNATIONAL Volume 11 Issue 1 March 2016

affect the critical path of contract work do not delay project completion, an accurate critical path analysis is essential to the determination of whether concurrent delays have caused delay damages related to the delayed completion of a complex construction project.’37 Like England,38 the US has a robust expert guide to forensic programme delay analysis, which has an extensive technical discussion of concurrent delay: Recommended Practice on Forensic Schedule Analysis, RP29R-03 (2011) (hereinafter ‘AACE 29R-03’).39 For example, AACE RP29R-03 specifically identifies the issue of simultaneity of the delay in its section on ‘literal and functional’ concurrency. The AACE says: ‘Under the Literal Theory, the delays have to be literally concurrent in time, as in “happening at the same time.” In contrast, under the Functional Theory, the delays need to be occurring within the same analysis period.’ 40 On the issue of simultaneity of the concurrent delays, the US courts say it is not required, but seldom actually find non-simultaneous concurrent delays. 41 US courts have also linked simultaneity and apportionment, thus leaving a further muddle as concerns concurrency theory and application. The courts almost always apportion the delays based on detailed programme analysis, and assign delays to the responsible party. Only when insufficient evidence is presented do they conclude that they cannot apportion the delay and fall back on the old rule on non-apportionment. Suffice to say that in the US three different apportionment theories coexist. The three approaches, all currently used in US courts, are: (1) intertwined delays; (2) apportionment of delays; and (3) jury verdict method of delay segregation. Intertwined delays are represented by a line of cases where there is an inability to separate employer-caused delays from contractor-caused delays, and a reluctance to speculate as to relative culpability and segregate the delays.42 This approach is still good law where it is impossible to parse the concurrent delays:43 ‘[The] delays to the project as a whole were inextricably intertwined and were caused jointly and concurrently by both parties. It is evident that substantial completion of the project as a whole could not have occurred without the completion of all three of those activities.’44 15

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However, because of the greater sophistication of forensic programme delay analysis in the past 25 years, this reasoning has given way to the other, more modern approaches as discussed below. Apportionment of delays is the predominant analytical approach and legal approach to the resolution of concurrent delay issues in the US. In recent years, most courts have found repeatedly that claims of

A large construction crane sits upon a work site on 47th Street in Times Square, New York City. © Andrew F Kazmierski/Shutterstock

concurrency, when examined in the harsh light of factual chronologies and detailed CPM analyses, do not show one single overall concurrent delay, but rather show critical and non-critical delays: ‘If the evidence shows that the contractor, along with the gover nment, caused concurrent delay to the critical path of a project, the contractor must apportion the delays affecting the completion of the project to be able to recover delay damages. … To recover for the delayed completion of the project, not only must plaintiff disentangle its delays from those allegedly caused by the government, but the delays must have affected activities on the critical path.’ [Citations omitted]45 Mainstream court decisions on concurrent delay show the preference for allocating responsibility based on a detailed chronology

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and forensic programme delay analysis, and this position has been widely adopted.46 If this more detailed analysis fails to apportion all the alleged concurrent delay, the courts and boards have generally fallen back on the intertwined delay theory for the remainder. Jury verdict method of delay segregation is seldom actually applied, although frequently discussed. The ‘jury verdict’ approach to concurrency allocates the delays based on the significance of each of the concurrent events on the project as a whole, and does not (or cannot) use a detailed chronology or programme delay analysis in making such an allocation. There are relatively few cases addressing this position clearly. For example, in PLC Construction Services Inc v US the court said: ‘[The rule against jury verdicts] is an old one whose underlying policies do not remain in full force.’ 47 However, in this case, the court concluded that there was sufficient information to allocate responsibility based on the factual evidence, and they did not resort to segregating the delays based on an ‘estimated allocation’. The case of Fischbach & Moore International Corp is sometimes cited for the proposition that concurrent delays on the critical path, even if not able to be apportioned based on their factual basis and delay analysis, can be segregated in the manner of a ‘jury verdict’: ‘[I]f there is no basis in the record on which to make a precise allocation of responsibility, an estimated [jury verdict] may be made in the nature of a jury verdict.’48 Thus some modern courts recognise a ‘jury verdict’ of responsibility, and thus delay, even when there is true concurrent delay that cannot be parsed based on the facts and delay analysis.

Apportionment of delays is the predominant analytical approach and legal approach to the resolution of concurrent delay issues in the US. Yet the cases that actually render a decision on that basis are extremely rare. In the case of Raymond Constructors of Africa Ltd v US, 49 the court was unable to quantify the causation of three recognised impacts to the critical path. As a result, the court made its own estimated segregation of responsibility:

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‘Actually, there is no basis in the record on which a precise allocation of responsibility for the overall delay in completing the work under the contract can be made as between the defendant’s delay in procuring equipment… [the government’s] delay in transporting equipment …to the job site, and the subcontractor’s shortcomings. In such a situation, it seems that the only feasible thing to do is to make a finding in the nature of a jury verdict that the defendant’s delay … was responsible for one-third of the overall delay in the completion of the work under the contract and, hence, for one-third of the extra indirect expenses…’50 Cases like Raymond that actually apply a ‘jury verdict’ standard are rare, and most cases in the US today decide delay in the cases of alleged concurrency using the allocation method, premised on the facts and a detailed forensic programme delay analysis. Conclusion There are three major conclusions to be drawn from this whirlwind tour of concurrent delay. Firstly, vast segments of the world’s legal systems have little or no law as concerns concurrent delay. While not discussed in this article, India, China, and Russia, to name but the largest geographic and population centers, seem to have no law on the topic, and relatively little law on programme delay generally. Further, even in many of the regions discussed, the code-based legal systems, while recognising programme related delay claims, largely make decisions based on the particular facts and equities of the case. Secondly, the English-based common law systems already do, or will likely follow, English precedent as represented by the Malmaison case, 51 applying the concept of a ‘dominant cause’ and ‘applying common sense’. Thirdly, apportionment of delay responsibility, as recognised in City Inn52 in Scotland, and often supported by detailed forensic programme delay analysis, is widely applied where finders of fact follow US legal precedence. Finally, it seems likely that as critical path method scheduling becomes better understood throughout the world by arbitrators and other fact-finders, there will be a steady, albeit gradual, expansion of detailed delay evaluations that will have to recognize one or both of the common law perspectives on concurrent delay.

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Notes 1 Matthew Cocklin, ‘International Approaches to the Legal Analysis of Concurrent Delay: Is There a Solution for English Law?’ (2014) 30 Const LJ 41, 47. 2 For a more complete discussion of the differences between English and US law on concurrency, see, J Livengood, ‘Comparison of English and US Law on Concurrent Delay’ (2015) 35(3) Construction Lawyer 21. 3 John Marrin, ‘Concurrent Delay Revisited’ (2002) Society of Construction Law 2; see Stephen Furst and Vivian Ramsey, Keating on Construction Contracts (9th edn, 2012) 8-025; Nicholas Dennys et al, Hudson’s Building and Engineering Contracts (12th edn, 2010) 6-059. 4 Henry Boot (UK) Ltd v Malmaison Hotel (Manchester) Ltd, [1999] 70 Con LR 32 (TCC). 5 The Society of Construction Law Delay and Disruption Protocol (Oxford 2002). 6 Ibid. 7 The author has observed a growing trend among employers for inserting anti-concurrency clauses in their contracts that turn any potential concurrent delay into contractor delay. See the discussion of concurrent delay in Australia. 8 Ibid, n5 above. 9 Walter Lilly & Company Ltd v Gile Patrick, [2012] EWHC 1773 (TCC). 10 Anthony Keating et al, Keating on Building Contracts (5th edn, 1991) 195; see also Anthony Keating et al, Keating on Building Contracts (7th edn, 2001) 8-26(b). 11 Royal Brompton Hospital NHS Trust v Hammond & Others, 76 Con LR 148, [31] (2001). 12 See n10 above; Stephen Furst and Vivian Ramsey, Keating on Construction Contracts (9th edn, 2012) 8-025. 13 City Inn Ltd v Shepherd Construction Ltd, [2007] CSOH 190, [2008] BLR 269, [2008] 24 Const. LJ 590, [2008] CILL 2537; and City Inn Ltd v Shepherd Construction Ltd, [2010] CSIH 68, [2011] SC 127, [2011] SCLR 70, [2010] BLR 473, 136 Con LR 51, [2010] CILL 2889. 14 See John Marrin, Concurrent Delay Revisited (2013) Society of Construction Law 10. 15 City Inn Ltd v Shepherd Construction Ltd, [44], [2007] CSOH 190, [2008] BLR 269, [2008] 24 Const. LJ 590, [2008] CILL 2537. The Judge also apportioned delay damages, at [167]. 16 Stephen Furst and Vivian Ramsey, Keating on Construction Contracts (9th edn, 2012) 8-025. 17 German Federal Ministry of Justice (2012) ‘German Civil Code – BGL’. 18 Hogan Hartson, Hogan Hartson Update. In brief: The Construction Contract Procedures Part B (2008), 6(2) and 6(4). 19 John Marrin, Concurrent Delay Revisited (2013) Society of Construction Law 13. 20 FIDIC Red Book, clauses 1.9, 2.1, 4.12, 4.7, 8.4, 13.3 and 19.4 21 Email to the author from James Perry, PS Consulting, 6 November 2015. 22 UAE Civil Code, Art 246(1). 23 UAE Civil Code, Art 290, 291. 24 Henry Boot (UK) Ltd v Malmaison Hotel (Manchester) Ltd, [1999] 70 Con LR 32 (TCC). 25 City Inn Ltd v Shepherd Construction Ltd, [2010] CSIH 68, [2011] SC 127, [2011] SCLR 70, [2010] BLR 473, 136 Con LR 51, [2010] CILL 2889. 26 (2005) 2SLR 530, (2005) SGCA 10. 27 (2005) 2SLR 530, (2005) SGCA 10, at 32. 28 PPG Industries (Singapore) Pte Ltd v Compact Metal Industries Ltd, (2013) SGCA 23.

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29 (2005) 2SLR 530, (2005) SGCA 10. 30 Australian Standard General Conditions of Contract AS2124-1992, clause 35.5. 31 Thiess Watkins White Construction Ltd v Commonwealth (Unreported), Giles J, NSW Supreme Court, 23 April 1992. 32 Armstrong Construction v Council of the Shire of Cook (unreported, White J, Supreme Court of Queensland, 25 February 1994). 33 March v Stramere (1991) 171 CLR 5061. 34 Henry Boot (UK) Ltd v Malmaison Hotel (Manchester) Ltd, [1999] 70 Con LR 32 (TCC). 35 Christopher Brasco and Christopher Anzidei, ‘Concurrent Delay and the Critical Path: Views from the Bench’ (Feb 2010) Cost Engineering Journal 18. 36 AACE International Recommended Practice No 10S90, ‘Cost Engineering Terminology’(2012) AACE International. 37 George Sollitt Construction Co v US 64 Fed Cl 229, n 8, 241 (2005). 38 The Society of Construction Law Delay and Disruption Protocol (Oxford 2002). 39 K Hoshino, J Livengood, and C Carson, RP 29R03 Forensic Schedule Analysis (AACE International, Morgantown, WV, 2011). 40 Ibid; see also Richard Long, Analysis of Concurrent Delay on Construction Claims (2013). 41 Fischbach & Moore International Corp, ASBCA 14216, 71-1 BCA 8775, 59244 (1971); RP Wallace Inc v US 63 Fed Cl 402, 410 (2004); Essex Electro Engineers v Danzig 224 F.3d 1283, 1295 (Fed Cir. 2000). 42 See also John Murphy Construction Co, AGBCA 418, 79-1 BCA 13836 (1979); Industrial Construction Corp, AGBCA 84-348-1, 90-2BCA 22767 (1990).

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43 See Baldwin v National Safe Depository Corp, 40 Wn App 69, 697 P.2d 587 (1985). 44 Coffey Construction Company Inc, VABCA No 3361, 93-2 BCA 25788 (1993). 45 George Sollitt Construction Co v US 64 Fed Cl 229, 241 (2005). 46 See also Santa Fe Inc VABCA Nos 1943-1946, 84-2 BCA 17341 (1984); Williams Enterprises Inc v Strait Manufacturing & Welding Inc, 728 F Supp 12 (DDC 1990); Utley James Inc, GSBCA No 5370, 85-1 BCA 17816 (1994); Tyger Construction Co v US 31 Fed Cl 177 (1994). 47 PLC Construction Services Inc v US 53 Fed Cl 429, 484 (2002). This author has used the word ‘allocation’ instead of the actual text ‘apportionment’ to keep the meaning clear. 48 Fischbach & Moore International Corp, ASBCA 14216, 71-1 BCA 8775, 59244. 49 Raymond Constructors of Africa Ltd v US 188 Ct Cl. 147, 411 F.2d 1227 (1969). 50 Raymond Constructors of Africa Ltd v US 188 Ct Cl. 147, 411 F.2d 1227 (1969). 51 Henry Boot (UK) Ltd v Malmaison Hotel (Manchester) Ltd [1999] 70 Con LR 32 (TCC). 52 City Inn Ltd v Shepherd Construction Ltd [2007] CSOH 190, [2008] BLR 269, [2008] 24 Const. LJ 590, [2008] CILL 2537; and City Inn Ltd v Shepherd Construction Ltd [2010] CSIH 68, [2011] SC 127, [2011] SCLR 70, [2010] BLR 473, 136 Con LR 51, [2010] CILL 2889.

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