Extension of time and concurrent delay on Malaysian projects

Concurrent delay is the problem that will not go away. It arises when two delaying events — one at the employer’s risk, one at the contractor’s — operate over the same period, each capable of delaying completion on its own. Who should bear the consequence, and how the contract’s extension-of-time machinery answers it, is one of the least settled questions in construction law here and abroad.

Time and money are different questions

It helps to separate the two entitlements. An extension of time relieves the contractor of liability for LAD over the extended period; loss and expense compensates the contractor for the cost of prolongation. It is quite possible for a contractor to be entitled to time but not to money for the same period of concurrent delay, and conflating the two weakens the claim.

The role of the programme

Whether delays are truly concurrent, or merely close in time, is a factual question answered by the programme and the progress records. The choice of delay-analysis methodology — as-planned versus as-built, time-impact, windows — can change the answer, and the method has to be one the records can actually support. A sophisticated analysis built on thin data does not persuade a tribunal.

Draft for it, record for it

Because the law is unsettled, the contract matters more, not less. Some forms now address concurrency expressly; where they do, the drafting governs. And whatever the form, the contractor’s best protection is contemporaneous: give the notices the contract requires, keep the programme updated, and preserve the records that show cause and effect. The dispute may be years away, but the evidence that decides it is created on site today.