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Who Is Responsible for the Weather?
Who should pay for delays caused by adverse weather conditions?

By Arthur F. O'Leary, FAIA, MRIAI

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Adverse Weather Delays
Delays caused by adverse weather are a major source of dispute in claims for construction time extension. Inclement weather conditions, including rain, snow, wind, and excessively high or low temperatures, are clearly beyond anyone's control, although they could be reasonably expected to occur.

Construction Contracts
This article is based on construction contracts that include the AIA General Conditions of the Contract, AIA Document A201-2007.

Some construction contracts allow time extension for any and all weather delays whereas others allow only for abnormal weather or adverse weather conditions not reasonably anticipatable.

The AIA General Conditions, A201-2007 provides, in Clause, that

"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 every day practice, this provision could cause as many disputes as it was intended to resolve. Moreover, it creates administrative headaches for architects and contractors alike. It would be difficult for a contractor to obtain convincing documentation substantiating that weather conditions were abnormal for the period of time.

This clause, in its attempt to provide certainty, fairness, and equity, creates a procedure that is too unwieldy for all but the largest, most costly projects and seems more appropriate for the courtroom or arbitration hearing rather than routine construction administration.

To make a claim under this clause, the contractor must comply with Subparagraph 15.1.2, which requires written notice within 21 days after occurrence of the event giving rise to such claim, and Clause which requires that the claim include an estimate of cost and of probable effect of delay on progress of the work.

Other Possibilities
In the circumstances commonly prevailing in more mundane projects, it would seem preferable to employ a simpler procedure. One possibility would be to specify that the construction time schedule be prepared to reflect only actual estimated construction time without allowance for any adverse weather conditions. In this situation, the contractor would be entitled to time extension for all adverse weather that impacts construction. These circumstances would then reflect actual weather conditions, would not give the contractor a windfall profit in case of exceptionally fine weather, and would be fair to owner and contractor.

Another possibility would be for the contractor, at the time of bidding, to state the number of days of adverse weather anticipated and included in its base bid and time schedule. The architect would then authorize time extensions for all adverse weather that impacts construction time after allowing for the number of days initially stated by the contractor.

Ideally, the contractor should not profit from favorable weather at the owner's expense or suffer a loss from adverse weather. In effect, weather should be the owner's risk.

Contractor as Weather Prophet
There is no logical reason why a contractor should be considered as an accurate long-range weather prophet. Why should a contractor be expected to pay for the inability to accurately predict the weather months or even years in advance?

Naturally, the parties can reverse the risk situation by a mutually acceptable contract provision.

Whatever method of measuring time is used, an additional source of weather-based dispute is the muddy, impassable site that prevails for several days following each precipitation occurrence.

When site paving and landscape work are completed and the main work is under cover, time extensions for rain, slush, and mud would be inappropriate and should not be allowed. Rainfall that occurs on weekends or holidays or during other concurrent delays (such as labor union stoppages) does not extend the contract time except for the resultant muddy site conditions affecting normal working days.

Windy days will cause postponement of certain operations such as roofing, exterior painting, or other outside work, and will thus affect the contractor's schedule accordingly. Adjustment for adverse weather that has no impact on the critical path cannot be allowed.

The contractor, according to the AIA General Conditions, is entitled to a time extension for delay in progress of the work caused by the owner's or architect's act or neglect, labor disputes, and other causes beyond control of the contractor. (8.3.1) Adverse weather certainly qualifies as a cause beyond control of the contractor.

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