Concurrent Delay

The determination of responsibility for delay is essential, as a contractor generally may not recover if government-caused delay is concurrent with additional delay not caused by the government, such as weather or contractor delay. As stated in Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed.Cir.1984):

The general rule is that “[w]here both parties contribute to the delay neither can recover damage[s], unless there is in the proof a clear apportionment of the delay and expense attributable to each party.” Blinderman [Constr. Co., Inc. v. United States], 695 F.2d at 559 [1982], quoting Coath & Gross, Inc., v. United States, 101 Ct.Cl. 701, 714 – 715 (1944). Courts will deny recovery where the delays are concurrent and the contractor has not established its delay apart from that attributable to the government.

See also Cocoa Elec. Co., ASBCA No. 33921, 91 – 1 BCA ¶ 23442

Updated: July 30, 2018