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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 15.1.5.2, 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 15.1.5.1 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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