- Governing rule
- Neither party recovers for concurrent delay unless the proof supports a clear apportionment of the delay and expense.
- Nature of the rule
- A rule of proof (evidentiary), not a rule of substantive law.
- Sollitt's two-part test
- Temporal (same delay period) and causation (each cause independently sufficient) aspects must both be present.
- Burden most often missed
- Separating the contractor's own delay from the government's. This is the contractor's burden, not the owner's.
- Practical effect of concurrency
- Converts a compensable delay into excusable-but-non-compensable: contractor keeps the time, loses the money.
- Alares result
- 765 days claimed, 218 days of VA-responsible compensable delay awarded, apportioned period by period.
- Alares and reservation of rights
- Board upheld the contractor's reservation in mod. P00005. The claim then failed on concurrency as a separate, independent ground.
- Suspension routing risk
- The CBCA's "sole cause" gloss (Lusk, Quality Trust) makes Changes (52.243-4) the safer vehicle over Suspension of Work (52.242-14) where any independent cause is present.
Where both parties contribute to a delay, neither recovers for it unless the evidence permits a clear apportionment of the delay and the expense attributable to each. That is the whole rule, and it is a rule about what the proof shows, not a substantive bar on either party's underlying entitlement. Blinderman Construction Co. v United States, 695 F.2d 552, 560 (Fed. Cir. 1982) supplies the canonical sentence. Sauer Inc. v Danzig, 224 F.3d 1340, 1352 (Fed. Cir. 2000), restates it almost verbatim two decades later. Where apportionment is genuinely supported, both sides recover pro rata for their severable periods. Where it is not, the practical effect is that concurrency converts a compensable delay into an excusable-but-non-compensable one: the contractor gets the time and loses the money, and the owner loses liquidated damages for that period but recovers nothing either.
The two-track result, in one 2025 case
ECC International Constructors, LLC, ASBCA No. 59586 (18 April 2025) is now the cleanest illustration of the concurrency rule in US practice, and it should be the first case cited on the point. Of 389 days of government-caused design delay, 205 were concurrent with contractor-side entry-control-point delays. Because the concurrent non-government delay (205 days) exceeded the government-caused design delay (119 days), the board held ECCI was not entitled to any compensable delay. Yet liquidated damages were still remitted for 119 days at $2,338.99/day ($278,339.81) on the separate excusable-delay footing.
That is the two-track result international practitioners routinely miss: concurrency defeats money but not necessarily time. A federal claimant should always plead the excusable-delay/LD-remission case in the alternative to the compensable-delay case, because it survives concurrency even when the primary claim doesn't: in ECC International the alternative case was the only recovery, and it was worth over a quarter of a million dollars.
The same decision is also a warning on quantum and on experts. An Eichleay overhead claim multiplies a daily rate by days of delay, so a concurrently-delayed day that isn't compensable can't feed the Eichleay arithmetic either. The quality of an Eichleay claim is only as good as the concurrency analysis underneath it. And the board rejected the contractor's delay expert as "not credible… not helpful… intrinsically unpersuasive" for deliberately omitting one of 23 delay events while running fragnets on the other 22, a reminder that a concurrency defense is won or lost on the completeness of the schedule analysis, not just its conclusions.
Sollitt's two-part test
George Sollitt Construction Co. v United States, 64 Fed. Cl. 229, 239 (2005), gives the working definition courts actually apply. Concurrent delay has both a temporal and a causation aspect: the competing delays must affect the same delay period, and each must be independently sufficient, on its own and without the other, to cause the days attributed to it. A delay that merely overlaps in time with another, without being independently capable of causing the same days of critical-path slippage, is not concurrent in the Sollitt sense. It is just coincidental in timing. The Sollitt court itself conceded that "the exact definition of concurrent delay is not readily apparent from its use in contract law", an unusually candid admission that the term carries more analytical weight than its own definition supplies.
The burden allocation: where the common assumption goes wrong
The common assumption is that the owner proves concurrency as a defence to the contractor's claim. That is only half right in federal practice. The government does typically raise concurrency and evidence it, usually through its own scheduling expert, but the persuasion burden on severability sits with the contractor throughout, on every issue that matters to recovery:
| Issue | Whose burden | Authority |
|---|---|---|
| Excusability, to defeat default or liquidated damages | Contractor | Sauer, 224 F.3d at 1347 |
| Extent of excusable delay, for LD remission | Contractor | Sauer at 1351 |
| Compensability (government caused it, critical path, harm) | Contractor | Sollitt, 64 Fed. Cl. at 238–39 |
| Separating its own delay from the government's | Contractor | Sauer at 1354 |
| Raising concurrency as an affirmative defence | Government raises and evidences it | Blinderman at 560, Sauer at 1354 |
The fourth row is the one that catches contractors: it is not the government's job to prove the contractor was concurrently at fault. It is the contractor's job to prove it wasn't, or, more precisely, to prove that the delay it is claiming was caused by the government and was not concurrent with delay of the contractor's own making. A contractor that proves a government-caused delay and says nothing about its own potentially overlapping delays has not proven a compensable claim. It has proven half of one.
Alares: the worked example
Alares Construction, Inc. v Department of Veterans Affairs
CBCA 6149, 7071, 7597 (21 March 2025) is the most instructive recent federal concurrency decision. Alares sought extended general conditions for 653 of the 765 days it attributed entirely to the VA. The Board found 218 compensable days, apportioned period by period exactly as Blinderman contemplates:
- Period 1 (212 days): 4 days VA, 30 days Alares.
- Period 2 (183 days): 22 days VA.
- Period 3 (309 days): 34 of a 112-day permanent-power delay window were VA-caused. The remainder was non-compensable because Alares' own building-enclosure and interior-work delays ran in parallel.
- Period 4 (330 days): 131 days VA, 144 days Alares.
The Board adopted the VA's expert critical-path analysis and rejected Alares' schedule logic wherever it was unsupported or contradicted by the contemporaneous record, drawing adverse inferences from unexplained slippage and unexplained logic changes in the monthly updates. The contract required those updates to reflect actual-versus-planned progress accurately, and Alares' failure to maintain that discipline cost it the benefit of the doubt. The Board also enforced Alares' duty to mitigate: Alares proposed temporary power so interior work could continue, the VA agreed to fund it, and Alares abandoned the plan without explanation, and recovery for that period was denied outright. Design defects did not rescue the claim either. The Board accepted "some defects in the specifications" but rejected the "riddled with fundamental design errors" characterisation, holding that work that could have proceeded despite the MEP coordination issues remained the contractor's responsibility.
On reservation of rights: modification P00005 reserved Alares' right to claim, separately, the impact of the change "alone or in combination with other changes, on unchanged work," plus time and time-related costs. The Board gave that reservation effect and rejected the VA's implicit-release argument: the reservation held. The claim then failed anyway, on concurrency, which the Board treated as a wholly independent ground. Alares is not authority that reservations don't work. It is authority for what a good reservation does and does not achieve. It preserves the right to bring the claim. It does not prove the claim, and it says nothing about the contractor's separate burden to disentangle its own delay from the owner's.
The "sole cause" gloss on suspension claims
A distinct 2024–25 development narrows the Suspension of Work route specifically. The CBCA has begun applying a sole-cause requirement to FAR 52.242-14 Suspension of Work claims that functions as a concurrency defence against both suspension costs and Eichleay recovery:
- In Lusk Mechanical Contractors, Inc. v GSA, CBCA 7759 (30 April 2024), a Governor's COVID stay-at-home order was held an equal cause of the suspension alongside the Contracting Officer's own suspension order. Because the government was not the sole proximate cause, the suspension claim failed.
- Quality Trust, Inc. v Department of the Interior, CBCA 7451 (4 April 2025) denied suspension and Eichleay recovery on the same reasoning, compounded by the contractor's own prior agreement to the suspensions.
Authorities
- Blinderman Construction Co. v United States 695 F.2d 552, 560 (Fed. Cir. 1982)Where both parties contribute to a delay, neither can recover damage unless there is in the proof a clear apportionment of the delay and the expense attributable to each party.Secondary source. Case law in this cluster is not independently re-verified this passFind on CourtListener →
- Sauer Inc. v Danzig 224 F.3d 1340 (Fed. Cir. 2000)Sets the federal burden allocation: the contractor bears the burden of excusability, of the extent of excusable delay, and of separating its own delay from the government's (at 1347, 1351 and 1354 respectively).Secondary source. The pincites to 1347, 1351 and 1354 indicate the case was read carefully but it is not independently re-verified this passFind on CourtListener →
- George Sollitt Construction Co. v United States 64 Fed. Cl. 229, 239 (2005)Concurrent delay has both a temporal and a causation aspect: the delays must affect the same period, and each must be independently sufficient to cause the days attributed to it.Secondary source. Case law in this cluster is not independently re-verified this passFind on CourtListener →
- Alares Construction, Inc. v Department of Veterans Affairs CBCA 6149, 7071, 7597 (21 March 2025)765 days of delay claimed against the VA, 218 days awarded as VA-responsible compensable delay, apportioned period by period. The Board upheld the contractor's reservation of rights and the claim then failed on concurrency as an independent ground.Secondary source. Recent CBCA decision (21 March 2025), not independently re-verified this passFind on CBCA →
- Lusk Mechanical Contractors, Inc. v GSA CBCA 7759 (30 April 2024)A Governor's COVID stay-at-home order was an equal cause of the suspension alongside the CO's order. The government was not the sole proximate cause, so the suspension claim failed.Secondary source. Case law in this cluster is not independently re-verified this passFind on CBCA →
- Quality Trust, Inc. v Department of the Interior CBCA 7451 (4 April 2025)Suspension and Eichleay recovery denied on the same sole-cause reasoning as Lusk, compounded by the contractor's own prior agreement to the suspensions.Secondary source. Case law in this cluster is not independently re-verified this passFind on CBCA →
- FAR 52.243-4: Changes FAR 52.243-4The Changes clause vehicle for a delay claim. Its equitable-adjustment mechanism includes profit, unlike Suspension of Work.Clause number and title as incorporated in the standard FAR text. The FAR Overhaul is mid-flight, and the clause as incorporated in a given contract may carry deviated text. Always read the contract, not the FAR websiteFind on acquisition.gov →
- FAR 52.242-14: Suspension of Work FAR 52.242-14The Suspension of Work vehicle. Its adjustment excludes profit and is now subject to the CBCA's emerging sole-cause gloss.Clause number and title as incorporated in the standard FAR text. The FAR Overhaul is mid-flight, and the clause as incorporated in a given contract may carry deviated text. Always read the contract, not the FAR websiteFind on acquisition.gov →
- ECC International Constructors, LLC ASBCA No. 59586 (18 April 2025)205 days of concurrent contractor-side delay exceeded 119 days of government-caused design delay, so no compensable delay was awarded, yet liquidated damages were remitted for 119 days at $2,338.99/day ($278,339.81) on the separate excusable-delay footing. The board also rejected the contractor's delay expert as not credible for deliberately omitting one of 23 delay events from the fragnet analysis.Secondary source. Not independently re-verified this pass.Find on ASBCA →
About this material Library content is general information about construction claim practice, not legal advice. Entitlement, deadlines and procedure are governed by your own contract and by the law of the place the work is performed. Reviewed September 1, 2026 · Report a correction