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I. INTRODUCTION
Courts and Boards of Contract Appeals have long considered concurrent delays to be excusable. Indeed decisions like Blinderman Construction Co. v. United States "memorialized the conceptual rule that '[w]here both parties contribute to the delay neither can recover damage, unless there is in the proof a clear apportionment of the delay and the expense attributable to each party.'"1 The phrase "time but no money" evolved from this rule, and serves as the standard shorthand to define the practical resolution of concurrent delays on a federal construction project.2 "This summary approach reflects the reasoned analysis of concurrent delays in the context of [the federal Default clause]3 in government contracts, and balances the risk of these joint delays by dividing the financial burden between the parties."4 Thus, in the face of delays caused by both the contractor and the Government, the contractor will receive additional time to complete the work, but neither the Government nor the contractor may recover delay damages.5 As such, a concurrent delay serves as an excusable, but not compensable, delay.
While the allocation of responsibility for concurrent delays remains well established with respect to damages for delay, its application to constructive acceleration has come under attack. Two recent decisions from the Armed Services Board of Contract Appeals ("ASBCA" or "Board") threaten the notion that concurrent delays qualify as excusable, but not compensable, delays.6 These decisions rest on the flawed premise that "in a 'Changes' clause analysis, a contractor cannot recover acceleration costs flowing from a concurrent delay, unless the record supports a clear apportionment of the delay and expense attributable to each party."7 While that premise appears on its surface to comport with the allocation responsibilities inherent in a delay damages calculation, it ignores the rule that concurrent delays are excusable and contradicts the long-held belief that, in the face of concurrent delays to the work, "neither party will benefit from the delay."8 A contractor that experiences a concurrent delay is entitled to time, but not money, for the costs of the delay. Where the Government refuses to grant additional time and forces the contractor to accelerate, the Government, not the contractor, should bear the costs of acceleration.
This Article provides a brief review of the doctrine on concurrent delay...