Managing concurrent delay in Qatar construction projects

While courts in other jurisdictions, such as the UK, have developed a body of case law on the principle, if the contract is governed by Qatar law, the party bearing the risk of claims involving concurrent delay is determined by the contract and Qatar Law No. 22/2004.

Under this law, contracts are generally under the principle of “freedom of contract”, permitting parties to include whatever contract terms they wish, although mandatory provisions override any conflicting contractual provision included.

Assessing a concurrent delay 

A concurrent delay typically arises when a contractor is in delay and the employer also appears to be delaying the works. An immediate consideration is how, if at all, the contract defines concurrency. Often where the contract does contain a provision governing concurrent delay, it lacks specificity leading to ambiguity as to whether two overlapping events fall within the contractual definition of concurrency. When a concurrent delay does occur, the question debated between the parties is whether the contractor is entitled to an extension of time (EOT) in such circumstances.

The answer, again, depends on what the contract says. If the contract is silent or ambiguous then relevant articles of Qatar Law No. 22/2004 (the Civil Code) should be considered to guide the parties to reach the correct interpretation. Parties often also find reference to legislative commentaries such as Al Sanhouri, drafted by the draftsman of the Egyptian Civil Code from which the Qatari Civil Code originates, helpful. Previous judgments may also provide insights, but it is worth noting that in Qatar, there is no system of binding case precedent and, whilst past judgments can be persuasive - especially those from the Court of Cassation – they cannot be used with certainty to predict the outcome of subsequent decisions.

When analysing entitlement in circumstances of concurrent delay, the contract is given such credence because article 171(1) of the Qatar Civil Code contains the principle of ‘freedom of contract’ and gives precedence to the terms agreed by parties, if they are capable of being read literally and there is no ambiguity.

In Qatar, government contracts, such as standard forms used by Ashghal, Kahramaa, QatarEnergy and the like, tend to depart quite significantly from global standard forms such as the Fédération Internationale Des Ingénieurs-Conseils (FIDIC) form of contract.

In relation to concurrency, Clause 8 (5) [Extension of Time for Completion] of the 2017 FIDIC Conditions of Contract for Construction, General Conditions states that if a delay caused by the employer is concurrent with a contractor delay, then the entitlement to an EOT will be assessed "in accordance with the rules and procedures stated in the special provisions". This is not definitive, and it therefore encourages parties to consider how concurrent delay should be dealt with at the outset of the project when the parties are negotiating the terms of agreement.

The Society of Construction Law (SCL) Delay and Disruption Protocol 2017 is a globally recognised guideline on matters pertaining to extensions of time. In relation to concurrency, it says: “True concurrent delay is the occurrence of two or more delay events at the same time, one an Employer Risk Event, the other a Contractor Risk Event, and the effects of which are felt at the same time. For concurrent delay to exist, each of the Employer Risk Event and the Contractor Risk Event must be an effective cause of Delay to Completion (i.e. the delays must both affect the critical path). Where Contractor Delay to Completion occurs or has an effect concurrently with Employer Delay to Completion, the Contractor’s concurrent delay should not reduce any EOT due.” 

In relation to entitlement to cost for concurrent delay, the SCL Protocol says: “Where Employer Delay to Completion and Contractor Delay to Completion are concurrent and, as a result of that delay the Contractor incurs additional costs, then the Contractor should only recover compensation if it is able to separate the additional costs caused by the Employer Delay from those caused by the Contractor Delay. If it would have incurred the additional costs in any event as a result of Contractor Delay, the Contractor will not be entitled to recover those additional costs.”

Interestingly, the Qatar Civil Code contains article 257, which is available to assist parties further: “The court may reduce the amount of the compensation, or not award particular compensation, if the creditor by his fault has contributed to the occurrence of the detriment or has increased it.” 

If the contract is silent or ambiguous, article 257, and the global industry practice, is available to guide parties as to what entitlement arises in circumstances of concurrent delay.

Article 257 of the Civil Code indicates that judges or arbitrators considering entitlement to compensation where there are two parties contributing to a delay should analyse whether and to what extent each party has contributed to the delay, and apportion the compensation accordingly. 

In addition, article 256 of the Civil Code states that a party will not be liable for loss or damage that arises from a cause which the party is not responsible for. 

The ‘apportionment’ approach to concurrency analysis has always been widely adopted in Scotland, whereas England has historically approached concurrency based on the principle that a contractor is entitled to a full extension of time when there is concurrent delay, but cannot recover cost for that period, with these principles emanating from the case of Henry Boot Construction v Malmaison Hotel.

More recently though, in the case of Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council in 2022, the English Technology and Construction Court (TCC) found – in a first of its kind judgment for England – that in circumstances of concurrency where an employer and contractor delay event overlapped and the employer event lasted longer, the contractor was allowed an EOT and part of it was compensable, taking into account the contractor’s contribution to part of the delay. This shift in the approach to concurrent delay in England aligns the approach more closely with article 257 of the Qatar law, which identifies the same principles of apportioning fault and adjusting compensation based on each party’s contribution.