Concurrent and Pacing Delays in Construction: Separating Entitlement from Excuse

Jinoy Viswan
Oct 11
4 min read

1. Introduction: Why “Pacing” Is the Forgotten Half of Concurrency

In complex EPC and infrastructure projects, few issues cause more confusion than the boundary between concurrent delay and pacing.Owners invoke concurrency to defeat entitlement; contractors invoke pacing to defend it.Tribunals, meanwhile, sift through both arguments to locate the truth: whether the contractor’s slowdown was a dependent consequence of owner delay, or an independent concurrent delay.

In this article, we re-examine these intertwined doctrines through the lens of:

FIDIC Sub-Clauses 8.4 and 8.7 (Extension of Time and Delay Damages),
AACE RP 29R-03 (Forensic Schedule Analysis), and
SCL Protocol 2nd Edition (Concurrency Principles).

The goal is simple:To show that pacing is not a defence, but a legitimate mitigation response, when proven correctly.

2. Defining the Two Doctrines

2.1 What Is Concurrency?

True concurrency occurs when:

Two or more independent, critical, and causative delays occur at the same time;
Each delay would, in isolation, delay project completion;
Each delay is attributable to a different party.

The SCL Protocol and AACE RP 29R-03 align: overlap is not concurrency unless both affect completion.

Overlap ≠ concurrency.Concurrency = independent causative effect.

2.2 What Is Pacing?

Pacing arises when one party, usually the contractor, intentionally slows down non-critical work in response to an excusable or compensable delay by the other party.It is the practical decision to “not hurry up and wait.”

There are two forms:

Type	Description	Tribunal View
Direct Pacing	Successor activity extended because a predecessor (often owner-caused) delay controls progress.	Not concurrency – dependent delay chain.
Indirect Pacing	Unrelated activity slowed intentionally because owner delay elsewhere creates available float.	Potentially valid if contemporaneously decided and documented.

Thus, pacing is not a separate delay, it is a management response to one.

3. The Owner’s Perspective

Owners view pacing with suspicion.The argument often sounds like an excuse for inefficiency: “We slowed down because the owner delayed us elsewhere.”

However, tribunals consistently expect owners to prove contractor inefficiency, not merely assert it.In the absence of such proof, pacing can be justified if:

The contractor demonstrates capacity and readiness to perform, and
The pacing decision was contemporaneous, documented, and causally linked to an owner delay.

Practical Records Owners Examine

Owners’ teams should always check contemporaneous data, daily logs, manpower reports, material receipts, welding records, and CPM updates, to test whether pacing was genuine mitigation or post-event rationalisation.

4. The Contractor’s Perspective

Contractors argue pacing as a least-cost performance right, consistent with the implied duty not to “hurry up and wait.”

Typical triggers include:

Late approvals or change orders,
Late owner-furnished materials,
Delayed RFIs or engineering deliverables,
Access restrictions or delayed handovers,
Re-sequencing due to other contractors’ delays.

But pacing cannot conceal self-inflicted delays.If the contractor’s own resource shortages or management failures overlap with owner delays, entitlement collapses.

Aegis Insight:Pacing is valid only when it flows from prudence, not convenience.

5. Industry and Protocol Practice

AACE RP 29R-03 and SCL Protocol require three evidentiary elements to support pacing:

The parent (owner) delay preceded and created float for the paced work.
The contractor had demonstrable ability to resume normal progress.
A deliberate, contemporaneous decision to pace was made and recorded.

When argued retrospectively, without records, pacing becomes speculation.

As noted by Keane & Caletka (Delay Analysis in Construction Contracts):

“When pacing is argued with hindsight, it should be treated with caution and scepticism unless contemporaneous evidence supports it.”

6. Contractual Foundations under FIDIC

FIDIC contracts do not expressly define pacing, but several clauses implicitly regulate it:

FIDIC Clause	Relevance
8.4 – Extension of Time	Entitles time for delays “beyond the Contractor’s control.” Pacing is valid mitigation under this provision.
8.7 – Delay Damages	Bars LDs if Contractor is delayed by Employer-caused events, even if pacing occurred.
20.2 / 20.3 – Claims for EOT	Requires prompt notice and substantiation; pacing must be documented within these claims.
3.7 – Engineer’s Determination	Obligates fairness and causation analysis; mislabelling pacing as concurrency breaches this duty.

Aegis Observation:The right to pace exists implicitly within the contractor’s duty to mitigate costs and the Employer’s duty not to hinder performance.

7. Legal and Tribunal Approach

7.1 Contractor-Favourable Findings

Tribunals have upheld that:

Contractors need not maintain full acceleration during owner-caused delay.
They may reallocate labour to mitigate idle time.
Owner-caused delays nullify LDs even when non-critical contractor activities slip.

7.2 Owner-Favourable Findings

Conversely, claims fail when:

The contractor cannot segregate owner delays from self-caused delays.
Pacing was undocumented or decided retrospectively.
Contractor lacked capacity to perform regardless of owner delay.

8. Effects of Pacing on Delay Entitlement

Scenario	Effect	Compensability
Owner delay + Contractor pacing	Valid EOT, compensable cost avoidance	Contractor non-culpable
Owner pacing + Contractor delay	LD exposure remains	Contractor culpable
Mutual pacing with unclear causation	Apportionment likely under civil law (e.g., UAE Articles 290–291)	Shared responsibility

9. Evidentiary Standards

Tribunals require proof of contemporaneity, not narrative assertion.A successful pacing claim must show:

CPM logic identifying parent vs. paced paths.
Manpower and equipment logs evidencing slowdown decisions.
Correspondence notifying the owner.
Resource-levelling studies or cost-benefit analyses showing rationale.

Without these, pacing collapses into alleged concurrency.

Aegis Guideline for Contractors:

Always notify before pacing.
Document the management decision.
Quantify causation through schedule analysis.

10. Pacing within UAE Civil Law Context

Under e UAE Civil Code, tribunals may apportion delay liability based on relative fault.If the Contractor proves that owner delays were dominant and that pacing was a reasonable mitigation measure, the tribunal may:

Grant EOT for the owner-caused portion,
Reduce cost recovery proportionally to shared fault.

This mirrors the City Inn apportionment logic but applied within a civil law fairness framework.

11. Steps to Substantiate Pacing (Aegis Methodology)

Identify the Parent Delay: Determine the owner-caused event driving project completion.
Define the Paced Scope: Show which activities were slowed and why.
Link Through Schedule Logic: Demonstrate causality between delays.
Prove Capability: Establish that the contractor could have progressed absent owner delay.
Maintain Contemporaneous Notice: Written explanation of pacing intent.
Update Programmes Monthly: Highlight pacing decisions transparently.
Remove Contractor Faults: Separate self-caused inefficiencies.