Can Pacing Delays Be an Argument for Concurrency: A Comparative Analysis and Avoidance Guideline

Introduction

Project delays are critical in construction and project management, often leading to significant financial and legal disputes. Two key concepts frequently encountered in these disputes are Pacing delays and concurrent delays. Understanding the nuances of each is essential for project managers, contractors, and legal professionals. This article walks you through the definitions, implications, and considerations of both types of delays. It explores how pacing can sometimes be argued as a form of concurrency in disputes.

Section 1: Pacing Delays

Definition and Explanation: Pacing delays occur when a contractor intentionally slows down their work pace due to delays caused by employers, employer agents, or external factors related to the employer. The contractors intend to keep pace with employers’ delays, mitigate the potential delay costs, conserve resources and reduce disruptions.

Examples: An example of pacing delay is a contractor slowing down the activity of laying cables after discovering that the equipment supplied by the client is delayed. The contractor reduces the workforce and production by half to ensure the equipment arrives before cable laying is completed. In this way, the contractor will ensure smooth cable terminations and avoid idle time or damaged cables.

This action leads to an elongated activity timeline and can bring the activity to the project’s critical path but may be justified as a response to client-caused delays.

See the examples below of non-critical pacing and critical pacing.

Section 2: Concurrent Delays

Definition and Explanation: Concurrent delays involve two or more independent delay events occurring simultaneously or overlapping and affecting the same critical path. These delays can be complex, with both parties contributing to the delay.

Examples: In the same example of the cable laying. If the employer’s equipment delivery is delayed and simultaneously, the contractor cable laying activities are lagging behind the schedule due to reasons attributed to the contract. Both activities (Equipment delay and cable laying delay) are affecting the project’s critical path at the same time.

In this case, a concurrency cause is established, and an analysis is required to ensure the details.

Section 3: Comparative Analysis

A comparative table would highlight differences in causation, impact, and resolution. Delay pacing is typically a reaction to external delays and is more subjective, while concurrent delays involve clear, overlapping causes.

Section 4: Delay Pacing as an Argument for Concurrency

The main question is whether the contractor has the right to pace delay.

While the answer to this question depends on the contract terms and interpretation, most employers will intuitively answer No. However, one of the contractor’s essential obligations is mitigating the financial impacts of employer delay. Then why are there no pacing delays allowed? 

In some cases, pacing delays can be framed as part of concurrent delays. For instance, if a contractor’s pacing occurs simultaneously with a client-caused delay, it can complicate the attribution of delay responsibility. Proving this requires detailed schedule analysis and may depend on contractual terms regarding delay notification and management

Section 5: How to avoid pacing delays turn to concurrency

• The contractor must record the employer delays first by sending contractual notifications
• The contractor should notify the employer of his intention to delay pacing
• The contractor should provide a new schedule showing the new productivity rates and the new timeline for the activities subjected to delayed pacing
• The contractor must keep contemporaneous records that delay pacing is not leading the project’s critical path

Conclusion

Delay pacing and concurrent delays are distinct yet occasionally intersecting concepts in construction project management. Understanding their differences and how they can be argued in legal disputes is crucial for effective project management and dispute resolution.