Law and regulation of concurrent delay in Singapore

The term “concurrent delay” is a concept that is used relatively frequently in Singapore, particularly in the context of construction disputes and claims.

Similar to the position under English law, there is no “standard” or universal definition as to what it entails or how it is to be treated.

As a concept, the Singapore courts appear to acknowledge that concurrent delay is a factor that needs to be considered when assessing delay claims. 1

Relatively recently, the Singapore Court of Appeal considered a matter involving concurrent delay but unfortunately did not provide much guidance in terms of the basis for assessment of extension of time claims in cases of such concurrent delay. 2

From a contractual perspective, the Public Sector Standard Conditions of Contract for Construction Works 2014 (Seventh Edition July 2014) (“PSSCOC”) (which is a commonly adopted standard form contract in Singapore particularly for public sector projects) does address the issue of concurrent delay. 

In dealing with time and delay, Clause 14.2 of the PSSCOC provides that the Superintending Officer, when assessing the Contractor’s application for extension of time, shall take into account any delays which “may operate concurrently with the delay due to the events being considered by the Superintending Office and which are due to acts or default on the part of the Contractor”. 

However, the PSSCOC does not define the term “concurrent delay”, and neither does it provide how the Superintending Officer should treat such “concurrent delay”. 

The 1st Edition of the Society of Construction Law Delay and Disruption Protocol (Society of Construction Law 2002, Reprint 2004) is often referred to in Singapore and relied upon by parties as a guide.  Although there is yet to be judicial precedent in respect of the use of the SCL Protocol (either the 1st or 2nd Editions), it may have persuasive authority. 

See above. The position in Singapore with respect to extensions of time for concurrent delays remains unsettled. To this end, English jurisprudence will be instructive and will have persuasive authority. 

Primarily, the terms of the contract will govern. A well-drafted and clear clause in a contract that addresses the risk and treatment of concurrent delays will be enforceable in Singapore. However, as mentioned above, the standard form contracts ordinarily used in Singapore do not define what is meant by concurrent delay, and how time and delay should be addressed in the face of concurrent delays. 

Singapore is a common law jurisdiction, and English jurisprudence still has persuasive authority in Singapore. English common law have significantly influenced the law in Singapore and to-date the Singapore courts still often refer to English case law for guidance. Scottish case law will also have persuasive authority, and it will be interesting to see which approach the Courts will take.

See above. The position in Singapore in respect of extensions of time due to concurrent delay remains unsettled. This will primarily depend on the terms of the contract, and as stated above, a clearly drafted contract that places the risk of concurrent delay on the contractor will be enforced by the Singapore courts.

Not dissimilar to the practice in England, in Singapore, parties will appoint delay analysts and/or programmers to provide expert evidence as to the cause and extent of a delay. These delay analyses will then be tested by each opposing party, and the Courts will then decide as to which expert provided the between report.

The Singapore Court of Appeal has clarified that expert opinions do not bind the court, particularly when “the expert’s opinion relates to an issue of mixed fact and law”. 3

Yes, if the term is clearly drafted, we expect that the Singapore courts will give such terms effect.

An event that is at the Contractor’s risk under the contract (a “Contractor Risk Event”) will result in five weeks delay to completion, delaying the contract completion date from 21 January to 25 February. Independently and a few weeks later, a variation is instructed on behalf of the Employer which, in the absence of the preceding Contractor Risk Event, would result in delay to completion from 1 February to 14 February.

7.1 Is the Contractor entitled to an extension of time in respect of the variation? If so, for how long?

This question will turn very much on the factual circumstances and the effects of each delaying event.

We have assumed that the contract contains an extension of time clause entitling the contractor to an extension of time for variations (which delay the contract completion date) and the contract does not contain any provisions governing the treatment of concurrent delay. We have assumed also that the variation which was subsequently instructed lay on the critical path.

There is currently no clear indication as to which approach the Singapore courts would take.

While English and Commonwealth case law will have persuasive authority, the recent Singapore Court of Appeal decision in PPG Industries (Singapore) Pte Ltd v Compact Metal Industries Limited (which did not expressly consider the English or Scottish positions) seems to resolve the issue based on causation of the delay.

In PPG Industries, the Court reduced the time for which the sub-contractor was found to be liable for its own delay and found that “the defendant could not have been solely liable for the full 273 days of delay, because there were other delaying events which in all likelihood contributed in some measure to the 273 days of delay” so that instead of being liable for 273 days’ worth of delay, the sub-contractor was only liable for 186 days’ worth of delay.

This approach seems suggestive of the Court’s inclination towards the Scottish position in City Inn v Shepherd though the position remains unclear.

Based on this approach, and also assuming that the Contractor Risk Event and the variation are of “approximately equal causative potency” then the Contractor would be entitled to an extension of time for the delay caused by the variation. On that basis the Contractor would be entitled to an extension of time of 2 weeks (for the period 1 – 14 February), and would only be liable for 20 days delay (21 to 31 January and 15 to 25 February)

7.2 Assuming the Contractor is contractually entitled in principle to recover delay-related costs relating to the variation, for what period (if any) could it recover those delay-related costs?

Absent any specific contractual provision to the contrary, it is considered that if the employer and contractor are responsible for concurrent delay, the general position would be that neither party would be able to recover damages for the other party for that period of delay. 4  As a result, the Contractor would not be entitled to recover delay-related costs relating to the variation.