Concurrent Delay: Clearing Up The Confusion Over "Apportionment" In Construction Litigation

Whether a period of concurrent delay properly may be "apportioned" between the parties to a construction contract was a key issue recently in a major construction dispute. Jones Day represented the owners of a half-completed, multibillion dollar project, which had suffered a two-year delay to the critical path of work and, consequently, to the project's completion. The contractor sought a day-for-day extension of the completion date, as well as damages for each day of delay, claiming that the causes of the delay all were owner-assumed risks under the contract.

In contrast, the owners disputed responsibility for the causes of delay asserted by the contractor, and they pointed to other causes of delay for which the contractor was exclusively responsible and which had also delayed project completion by the same two-year period, or more. Notably, the parties' contract was silent on the impact of concurrent delays, leaving resolution of this issue to the doctrine of