Coordinating simultaneous delays within Qatar's construction initiatives

In the realm of construction projects, concurrent delay - a situation where a project's delay is caused by both the contractor and the employer - is a complex issue that requires careful consideration.

While concurrent delay is not explicitly recognised under Qatari law, the approach to this issue is determined by the contract and Qatar Law No. 22/2004. This law, which operates under the principle of "freedom of contract," allows parties to include any terms they wish, with mandatory provisions overriding any conflicting contractual provisions.

Clause 8 (5) of the 2017 FIDIC Conditions of Contract for Construction, General Conditions, states that the entitlement to an Extension of Time for Completion in cases of concurrent delay is assessed in accordance with the rules and procedures stated in the special provisions. However, in Qatar, government contracts, such as standard forms used by Ashghal, Kahramaa, QatarEnergy, and the like, tend to depart significantly from global standard forms such as the Fédération Internationale Des Ingénieurs-Conseils (FIDIC) form of contract.

In such cases, the Society of Construction Law (SCL) Delay and Disruption Protocol 2017 provides guidance. According to this protocol, 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, affecting the critical path.

The question debated between the parties in a concurrent delay is whether the contractor is entitled to an extension of time (EOT) in such circumstances. The answer depends on what the contract says. For instance, the SCL Protocol states that if a contractor incurs additional costs due to concurrent delay, they should only recover compensation if they can separate the additional costs caused by the Employer Delay from those caused by the Contractor Delay.

In jurisdictions like the UK, courts have developed a body of case law on concurrent delay. One such case is Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council in 2022, where the English Technology and Construction Court (TCC) found that in circumstances of concurrency where an employer and contractor delay event overlapped and the employer event lasted longer, the contractor was allowed an Extension of Time and part of it was compensable.

In contrast, Qatar does not operate under a system of binding case precedent. Past judgments cannot be used with certainty to predict the outcome of subsequent decisions. However, parties often 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.

Article 257 of the Qatar Civil Code indicates that judges or arbitrators considering entitlement to compensation where there are two parties contributing to a delay should apportion the compensation accordingly based on each party's contribution. This aligns more closely with the approach in Article 256 of the Qatar Civil Code, which states that a party will not be liable for loss or damage that arises from a cause which the party is not responsible for.

In summary, while concurrent delay is not explicitly recognised under Qatari law, the approach to this issue is determined by the contract and Qatar Law No. 22/2004. Parties are advised to carefully consider their contracts and seek legal advice to understand their rights and obligations in the event of concurrent delay.