Pacing Delay has been a complex subject of discussion ever since it first came into existence. It is usually meant to 
give the contractor a reason to slow down his work and match the pace with the project owner whenever there is a delay from the latter’s end in providing some input. However, when the contractor is at fault for delaying the work, he often responds with an excuse that owner’s fault led to its occurrence, or it was due to some external force at fault, and thus tries to seek excuse from paying liquidated damages. This is what is termed as “Concurrent Delay Defense” by the contractor, and has become quite a common thing nowadays.
Not too long ago, U.S. courts ruled a few decisions of a similar character in favor of the project owners. Owners can use these court rulings to defeat the contractors’ aforesaid defense and seek for damages from them for delaying the work without giving a prior notice. Some of the highlights which tilt the scale in favor of the owners in such cases include:
- The contractor did not file any prior notice for pacing delay
- The contractor did not inform the owner in advance of why he delayed the work
- Even if the owner was at fault, the contractor never raised the issue on time, which further delayed the project
- In either scenario, the contractor was unable to fulfill the contractual obligation
Owners generally don’t seek for liquidated damages until the project has been completed. This is usually why contractors too do not file a claim for concurrent delay until the project has been completed. There is no official recognition for ‘pacing delay’ as a term, and so the contract too does not mention the need for contractors to file ‘delay’ claim beforehand. However, given the practical scenarios, this certainly must not be the reason for not issuing a written notice for owner-caused delay the moment it happens.
Several construction law conferences are held around the country which highlight the different aspects of concurrent delay, and how those impact both the project owner and the contractor. These sessions focus on case studies as well as cite live examples to give in-depth idea of the mechanism which goes behind this concept, and how it can be best dealt with. You too can join expert speakers Emily Federico & James G. Zack, Jr. for live webinar on Tuesday, September 27, 2016 and get in-depth analysis of two major case studies and access lots of other useful information.
