Although many owners and contractors might not agree with the last line of this carol, most would agree that the “weather outside” can be “frightening.” Most construction projects involving outdoor work are likely to encounter some bad weather. But what effect will bad weather have on the project schedule and, more importantly, on construction costs? After a long hiatus, this month’s contracts column revisits weather delays, including a look at their treatment in AIA Document A201-2007, General Conditions. See the August 2001 edition of Bricker- ConstructionLaw.com for more information.
Excusable and Compensable Delays
Before examining the A201 document, one must understand the relationship between excusable and compensable delays. Excusable delays entitle a contractor to one thing and one thing only: an extension of time to complete the work. Typical examples of excusable delays include labor disputes, concealed or unknown condition, and weather delays.
Assuming a delay is excusable, it also must be “compensable” for the contractor to receive both additional time and money. Common compensable delays include those which the contractor establishes were caused by the owner or its agents, were the result of physical damage to the project over which the contractor had no control, or were the result of concealed or unknown conditions.
A201 (2007 edition) and Weather Delays
In an effort to keep contractors from including weather delay contingency costs in their bids, standard construction documents shift the time risk associated with weather delays to the owner. Section 126.96.36.199 of AIA Document A201 (formerly located in section 188.8.131.52 of the 1997 edition) defines the standard for weather delays as the following:
If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated, and had an adverse effect on the scheduled construction.
In essence, a contractor seeking to make a weather delay claim must provide documentation showing that the weather conditions:
- Were unusually severe for the period of time;
- Could not reasonably have been anticipated; and
- Had an adverse effect on the scheduled construction.
- Case law from the federal courts provides guidance on how this or a similar standard will be interpreted.
- Unusually severe weather. In a case before the Armed Services Board of Contract Appeals, Bigelow, Inc., ASBCA No. 24376, 81-2 BCA ¶ 15,300, the Board defined “unusually severe weather” as the following:
Adverse weather which at the time of the year in which it occurred is unusual for the place in which it occurred. No matter how severe or destructive, if the weather is not unusual for the particular time and place or if the Contractor should have reasonably anticipated it, the Contractor is not entitled to relief.
Likewise, the Court of Appeals for the Federal Circuit identified it as “weather more severe than any that might be anticipated for the project location during the period of expected performance.” Fraser Constr. Co. v. United States (Fed. Cir. 1999), 1999 U.S. App. LEXIS 15787.
Implied in these cases is that a contractor making a weather delay claim must submit comparative weather data because records of actual weather are “meaningless without comparative data to show what the normal weather [for the relevant period of time and] area is.” Lyburn Construction Company, ASBCA No. 29581, 85-1 BCA ¶ 17,764. As a general rule, owners and contractors should review weather data for the previous five years to establish normal weather conditions.
Comparative weather data can be obtained from a number of sources, including the United States Department of Commerce, National Oceanographic and Atmospheric Administration (NOAA), or National Climatic Data Center. Regardless, it is important that owners and contractors regularly and systematically collect information about the progress of the construction project, including the onsite weather conditions.
Adverse effect on the project. Once the contractor establishes that the weather was unusually severe (and could not reasonably have been anticipated), the contractor must show the effect of this weather on the project. Specifically, the contractor should show that the weather affected specific portions of the work and that this work was on the project’s then-current critical path.
Daily job logs or progress reports are very important in establishing not only the weather conditions but also what activities were taking place on site. The “as planned” versus “as built” schedules can be used to show the impact of weather delays or other delays on the progress of the work. These daily progress reports and schedules should be supplemented by a regular pictorial history of the project.
Procedure for Submitting Weather Delay Claims
All claims regarding extensions of time shall be made in accordance with the applicable provisions in Article 15 of AIA Document A201 (formerly located in Article 3 of the 1997 edition). Section 15.1.2 requires that claims be submitted within 21 days after the occurrence of the event giving rise to such claim, or within 21 days after the claimant first recognizes the condition giving rise to the claim, whichever is later. Thus, a contractor encountering unusually severe weather conditions that could not reasonably have been anticipated, has 21 days to submit written notice after recognizing the possibility of a weather delay claim.
Potential Pitfalls for the Owner
If an owner directs a contractor to perform in inclement weather, the owner may be liable to compensate the contractor for the contemporaneous production inefficiencies. This situation often arises in site development work undertaken in the late fall or spring.
Likewise, if an owner fails to grant a weather delay to which the contractor is entitled and enforces the original contract end date, the owner may be liable for the contractor’s extra manpower and equipment costs necessary to meet the schedule. This is referred to as “constructive acceleration.”
Compensable Weather Delays
So we come back to the question: If compensable delays are generally those caused by the owner, the owner’s agents, or other contractors, and if weather delays must be abnormal, unanticipated, and adverse to the project, how can a weather delay be compensable? Surely weather is one element that can’t be blamed on an owner or on the owner’s agents.
Ordinarily, a weather delay is only excusable. But, under the right (or wrong) circumstances, a weather delay can be compensable. First, the contract documents can define “compensable delays” in a manner that incorporates certain types of weather delays, such as those due to unusually severe weather. Furthermore, a compensable delay can cause compensable weather delays.
For example, the parties may want to start construction in the fall in order to complete the building pad before winter. If the owner is unable to obtain the site, thereby delaying the start of the project into the winter months, the contractor may be unable to proceed due to weather delays. In this circumstance, the weather delay that otherwise would have been excusable also may be compensable. This is true if the contract defines a compensable delay to include weather delays. Owners, however, may want to shift this risk to the contractor by making weather delays excusable (i.e., time extension permitted) and not compensable.
Weather frequently impacts construction projects in Ohio. Owners need to know how their contracts deal with weather delays and the impact such delays have on the completion time and the budget. Both owners and contractors should keep a record of actual weather conditions for the duration of a project. A contractor who believes its work has been delayed by the weather should review the weather delay provision in the contract documents and promptly submit a weather delay claim with comparative weather data.