Concurrent Delay and the Critical Path: Views From the Bench

摘要

The stated goal of AACE International Recommended Practice No. 29R-03 on Forensic Schedule Analysis is to offer a standardized protocol that attempts to minimize procedural subjectivity in order to facilitate the resolution of delay disputes on the merits. It is uncertain, however, whether the recommended practice will assist practitioners in overcoming several challenges presented by the existing body of case law related to concurrent delay. While there is basic agreement among judges as to the legal consequences of a finding of concurrency, both the parties and judges involved in nearly every delay dispute seem to have differing views as to which delays should be treated as truly concurrent. The uneven application of basic concurrency rales to recurring fact patterns has given rise to inconsistent precedent and a lack of predictable guidance for parties seeking to avoid future disputes. The challenge for a practitioner seeking to employ the AACE International Recommended Practice is to tailor the presentation of the delay analysis in a manner that accounts for how judges distill and decide cases.