Weather or Not You Have a Delay
If a raindrop falls at a nearby
airport but not on the project site, does the contractor get a weather delay
extension? This seemingly easy question is not so easy when it comes to most
construction contracts. Typical contracts and specifications will go into
excruciating detail on the requirements for various systems within a building
but are generally very vague or silent as it relates to weather. Simple
questions such as What is weather? What is abnormal weather? What is a
weather impact? How do you measure precipitation? Do you evaluate the
impact of weather monthly or cumulatively? are frequently not addressed in
many construction contracts and specifications.
Common Language – The
Good, the Bad, and the Ugly
Let’s start with the ugly. Ugly is being completely silent
on weather and keeping the answers to the questions above a mystery. Does the
contractor receive a time extension for every day of bad weather or does the
contractor receive no extension for any type of weather? This situation is why
there are construction lawyers – go find a good one.
The bad. An example of “bad” weather impact language would
be along the lines of, “No consideration
of weather impacts will be allowed except when conditions exceed the five-year
NOAA average.” This is a start, but leaves many unanswered questions:
- The five-year average of what? Rain days? Temperatures?
Rain days with over 0.1” of precipitation? Rain total for the month? Rain for
each calendar day? Wind?
- How does the contractor “plan” for the average?
So how do we get to good weather contract language? Start
with answering these questions:
- What is
weather? It is important to define what constitutes weather. Are snow,
wind, rain, fog, temperature, etc. included?
- What is
abnormal weather? You first must define normal. A simple way to do this is to
identify a table with the number of weather-impact workdays to anticipate each
month. If “normal” is defined by a reference to an external data source, that
source and the specific criteria should be specified. For example, “utilize the 10-year average workdays per
month with precipitation in excess of 0.10” for the closest monitoring
station.” Other potential weather impacts such as wind and temperature
should be similarly defined.
- What is a
weather impact? The specifications need to clearly define these parameters,
including: Does the weather have to occur at the project site? Some
specifications require the contractor to report precipitation from the closest
airport. Does jobsite production have to be impacted the entire day? What if it
rains 0.25” at 3:00 pm? What if it rains on one day or overnight but impacts
production the next day?
- How do you
measure precipitation? Measurement of the alleged weather impact is crucial
for properly assessing any weather impacts. This language should be specific on
the location and frequency of measurement for each of the defined weather
components. In addition, the measurement of any “wet days” or similar affects
should be defined. It is also important to note that most contracts also place
a requirement on the contractor to mitigate weather impacts. Weather impacts
resulting from the contractor’s failure to adequately protect the work may
result in rejection of claimed weather impacts stemming from the contractor’s
actions/inactions. The contract language should be reviewed to ensure it is
- Do you
evaluate the impact of weather monthly or cumulatively? Abnormal weather
impacts can occur during an individual month. The specification needs to define
if this is justification for any extension or if weather impacts are evaluated
cumulatively throughout the project, which typically dampens the effect of any single
- Other considerations:
- The weather impact language should also be
reviewed with the force majeure clause language to ensure they are compatible.
- On building projects, many times the contract
language will limit the assessment of weather impacts upon achieving building
“dry-in.” This approach necessitates the definition of “dry-in” and reinforces
the importance of the contractor demonstrating the critical path impact resulting
from the alleged abnormal weather.
- If a specification requires the contractor to
anticipate “average” weather impacts, how is this documented? One clean method
is to assign weather-sensitive activities in the project CPM schedule to a
calendar in which the “average” number of adverse weather days are incorporated
as non-workdays. Contractors frequently indicate that “weekends” will be used
as make-up days or that the anticipated weather impacts are incorporated into
the planned durations. Both of these methods need more documentation as to the
assumptions used to incorporate the “average” anticipated adverse weather.
So How Do You Figure
Out If You Do Have a Weather Delay?
Like most things in life, it depends. If you have “good”
contract language, the determination of any excusable time extension for a
weather impact is simply an exercise of the process that is clearly defined in
the contract. In the cases of “bad” or “ugly” contract language, getting the
contractor and the owner/design team on the same page prior to
experiencing adverse weather is key.
The first step is to establish the baseline assumptions. How
much adverse weather should have been anticipated? Are weather related
activities placed on a weather calendar that has historic average number of
days as non-workdays? Is weather assumed to be in the planned duration of an
activity? Do all parties agree to a definition of dry-in for a building? MBP
recommends having this discussion at the preconstruction meeting and all
parties agree to the method of analysis upfront.
Once you understand any contract definitions and baseline
assumptions, the next step is to quantify the impact. What source of data
collection was used, NOAA, local weather station, or rain gauge on-site? Do you
need to add in muck-out days following a rain event? Did the contractor make
all reasonable accommodations to avoid such hinderance? This step will go
beyond a straight mathematical comparison of planned versus actual precipitation
days per month to evaluate impacts to the critical path of the project.
the Waters for a Minute
There are other weather impacts to consider depending on the
stage of construction and project location such as high winds, temperature
extremes, and humidity. The use of a crane, placing concrete, and paint
activities can be affected by weather beyond precipitation. While these items would
be addressed in “good” contract language, in other cases, MBP again recommends
early discussion regarding these possible impacts and how any alleged impacts
will be assessed.
So, how do you avoid all this confusion? MBP offers the following
recommendations regarding adverse weather impacts:
- Provide clear contract language defining all
aspects of potential adverse weather impacts – what constitutes adverse weather
and how is impact determined.
- Early project discussions – do not wait until
the contractor submits a time extension request. In the preconstruction meeting,
or a special meeting focused solely on this topic, discuss, gain consent from
all parties, and document for future reference.
- Each project is unique – make sure the definitions
and applications are tailored to the requirements of a specific project;
remember non-precipitation impacts.