Concurrent delay is one of the most complex and frequently debated topics in construction claims. When both the employer and the contractor cause delays that overlap in time, determining entitlement to extensions of time and additional costs becomes significantly more challenging.
This guide provides a practical overview of how concurrent delay is assessed in Saudi Arabian projects, with reference to both FIDIC contract provisions and the approaches commonly adopted by tribunals in the region.
What is concurrent delay?
Concurrent delay occurs when two or more delay events, for which different parties are responsible, affect the critical path of the project during the same period. The classic example: the employer fails to provide access to a work area (employer risk) at the same time the contractor experiences a labor shortage (contractor risk).
The key question is: if both events are independently capable of causing critical delay, who bears the risk and what happens to the contractor's entitlement to time and money?
Why concurrent delay matters in Saudi projects
Saudi Arabia's construction boom under Vision 2030 has created an environment where concurrent delays are particularly common. Multiple packages running simultaneously, aggressive schedules, design development running parallel to construction, and the involvement of numerous stakeholders all increase the likelihood of overlapping delay events.
Understanding how concurrent delay is treated is critical because it directly affects whether a contractor receives an extension of time (and thus avoids liquidated damages) and whether the contractor can recover prolongation costs for the overlapping period.
The FIDIC position on concurrent delay
FIDIC contracts do not explicitly address concurrent delay. Neither the 1999 nor the 2017 editions contain specific provisions governing what happens when employer and contractor delays overlap. This silence has led to different interpretations depending on the governing law and the specific wording of any amendments.
In practice, the position under most FIDIC contracts in the GCC is that the contractor is entitled to an extension of time for the employer risk delay even if the contractor was also causing delay concurrently — provided the employer risk event is on the critical path. However, the contractor may not be entitled to recover prolongation costs for the concurrent period, because the contractor would have been delayed in any event by its own cause.
The SCL Protocol approach
The Society of Construction Law (SCL) Delay and Disruption Protocol (2nd Edition, 2017) provides guidance that is widely referenced in GCC arbitrations. The Protocol distinguishes between two types of concurrent delay:
True concurrent delay
Both events occur at the same time and both independently affect the critical path. The Protocol recommends that the contractor should receive an extension of time but should not recover prolongation costs for the concurrent period.
Sequential delay events in the same period
Two events occur in overlapping time windows but one starts before the other. The Protocol recommends analyzing them sequentially — the first event to affect the critical path takes priority, and subsequent events are assessed against the then-current critical path.
How Saudi tribunals approach concurrent delay
Saudi arbitration tribunals (particularly those operating under ICC and SCCA rules) generally follow a pragmatic approach that balances the competing interests:
Regarding extensions of time, tribunals in the region typically grant the extension even in the presence of contractor concurrent delay, provided the employer risk event is demonstrated to be on the critical path. The rationale is that the employer should not benefit from its own breach simply because the contractor was also causing delay.
Regarding prolongation costs, tribunals are more cautious. The prevailing approach in the GCC is that the contractor should not recover prolongation costs for periods of true concurrent delay because the contractor would have incurred those costs in any event due to its own delay. However, some tribunals have adopted an apportionment approach, allocating costs between the parties based on the relative contribution of each cause.
Practical tips for GCC contractors
Maintain detailed records
The ability to demonstrate causation is critical in concurrent delay situations. Maintain daily records of all delay events, their causes, and their impact on the critical path. Without good records, it is almost impossible to distinguish between concurrent and sequential delays.
Update your programme regularly
A regularly updated Primavera P6 or MS Project schedule is the best tool for identifying concurrent delay events as they happen. Monthly updates that capture actual progress, delay events, and critical path changes create the contemporaneous record that tribunals rely on.
Issue notices for every employer delay event
Even if you believe concurrent contractor delay exists, always issue timely notices for employer risk events. Under FIDIC 2017, the 28-day notice requirement is a condition precedent — failing to notify because you assumed concurrency would negate the claim is a costly mistake.
Separate your delay analysis from your quantum analysis
Entitlement to time and entitlement to money are two separate questions. You may be entitled to an extension of time for the employer's delay even if your prolongation cost recovery is limited by concurrency. Keeping these analyses separate strengthens your overall position.
Conclusion
Concurrent delay is rarely straightforward, and the approach taken by tribunals continues to evolve. The most important thing a contractor can do is maintain the records and analysis that allow the competing delay events to be properly identified, sequenced, and assessed. In our experience across dozens of GCC projects, the quality of the contemporaneous records is the single biggest factor in determining the outcome of concurrent delay disputes.
Related services: Claimetrica provides expert forensic delay analysis using TIA, Windows Analysis, and Collapsed As-Built methodologies. We also support dispute resolution and expert witness testimony. Request a free consultation →