02/27/2021

Weather Delays – Ownership in the Eyes of the Owner

By John S. Crane, PSP, CFCC

 

In an article, Wrestling in the Mud or Dancing in the Rain: Planning for Mother Nature, published by Construction Claims Advisor in March 2013 (Vol. 2 - Issue 11), the focus was placed on the questions and scenarios stakeholders need to consider when planning and tracking adverse weather in the project schedule.  The article addressed the ambiguities in some standard contract clauses addressing weather-related delays and time extensions. The 2007 edition of the American Institute of Architects’ AIA-A201 Standard Agreement (AIA) and the ConsensusDOCS were used as examples of contracts that included such ambiguities. Although these contract documents have been updated in recent years, the clauses referencing weather-related delays and time extensions remained relatively unchanged.

 

What was previously Section 4.3.7.2 of the 2007 AIA-A201, Section 15.1.6.2 of the 2017 AIA-A201 states:

 

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.

 

Similarly, Section 6.3.1 of the ConsensusDOCS 200 – Standard Agreement and General Conditions Between Owner and Constructor – 2001, Revised April 2018, now states:

 

If the Contractor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of the Constructor, Constructor shall be entitled to an equitable extension of the Date of Substantial Completion or the Date of Final Completion. Examples of the causes beyond the control of the Constructor include … (m) adverse weather conditions not reasonably anticipated.

 

Anyone reading these clauses will most likely have the same question, what is “normal” or “reasonably anticipated” weather and how can it be quantified and monitored? As discussed in the 2013 article, there are several considerations when determining the amount of “reasonably anticipated” weather delays for a project. But, to lower the risk of any disputes, the parties simply need to agree on the amount, since it is just an estimate. As part of this process, the owner needs to ask itself why it cares to include the time associated with anticipated weather delays as part of the contract duration. If there is no specific reason, such as financing or public information, that requires a best projection of the completion date, the owner may be best served by providing a time extension for all weather-related delays, provided the alleged weather delays meet other contract requirements.

 

Provided it is necessary to include some amount of anticipated weather delay, owners may attempt to remove some of the ambiguity that comes with determining the amount of “normal” weather. For example, some contracts may state how many days of anticipated weather delay is to be considered for the overall project duration or some other specific period, such as some number of days for each month of the year. Other contracts may state that a contractor is due time if the actual weather delays exceed some average by a certain percentage. An example of this may be that the contractor can request time if the rainfall at the jobsite exceeds the monthly average by 20 percent.

 

The ambiguities do not typically stop with just the definition or determination of “normal” weather delays. As further discussed in the 2013 article, the contractor will need to determine how it plans to include, if at all, and track the “reasonably anticipated” weather delays in the project schedule. Contracts such as the AIA-A201 and ConsensusDOCS are completely silent on this topic. Therefore, to minimize the risk of disputes, these steps should be discussed and agreed upon by both parties, so that each party has a clear understanding of when the “norm” is exceeded, and a time extension may be due. This also requires that both parties agree on how and when the anticipated and actual weather delays are evaluated. If both parties can agree on all these aspects, the risk of weather-delay dispute is greatly reduced.

 

Interestingly, in many cases where there are ambiguous weather-related clauses, the owner has set the contract completion date. In theory, this means the owner also included time for “normal” weather delays in its planned project completion date. Although the contract completion date set by the owner includes “normal” weather delays, it is possible the owner never considered them, or the owner simply chooses not to share this information or make it part of the contract and specifications.

 

As we all know, communication is key to avoiding disputes. In the case of weather-related time extensions, if the parties can agree on the amount of “normal” weather delay, along with how and when time extensions will be evaluated, the only major question that remains is how the contractor includes and tracks the anticipated weather delays in the project schedule, if at all.

 

Methods to Address Weather in the Project Schedule

 

Presuming the contract clauses and special provisions are silent and the contractor plans to include “normal” weather delays in its project schedule, there are a few options the contractor may consider. 

  • Adjust activity durations.
  • Create schedule calendars.
  • Include as a stand-alone activity.

 

Although adding “normal” weather delays as a stand-alone activity, typically as one activity at the end of the project schedule, the schedule may include what many consider to be inaccurate or unreasonable as-planned start and finish dates for work-related activities, it can be the easiest method to administer and monitor throughout the course of the project. Essentially, this method plans for the best-case scenario. This would require all parties to plan on meeting its obligations on the earliest possible date, in the event the weather delays do not occur as anticipated. Also, the range of the “inaccuracies” associated with the planned start and finish dates for work-related activities will diminish as the project progresses and the schedule is updated.

 

Certainly, showing as-planned start and finish dates earlier than what historical data may suggest could be a hassle when managing the work on the project and potential claims for delays. Therefore, contractors may feel that including “normal” weather delays in the schedule calendars or activity durations provides a better option. However, if the contractor chooses to include “normal” weather delays as part of the durations for work activities or in the schedule calendars, the contractor should understand that these options require more monitoring and communication between the parties as the project progresses and the schedules are adjusted.

 

To keep the waters from getting muddy, owners, such as some government agencies, may provide the contractor with a specific number of anticipated weather-delay days that must be allowed for in the contractor’s plan. Some owners may even choose to specify how many days of anticipated weather delays the contractor must allow for within a specific period. For example, the owner may state how many anticipated weather-delay days must be considered for each month of the year. It is not uncommon to see contracts require that the “norm” be determined by data made available by specific sources, such as the National Oceanic and Atmospheric Administration (“NOAA”).

 

But both parties must realize that sources such as NOAA only provide information that can be used to estimate the amount of “normal” weather a project may experience. The data provided does not consider the effects the “normal” weather may have on a specific project. Therefore, depending on the project, “normal” weather delays may be more or less than what the data may suggest. Thus, simply stating the source from which the data much be taken does not eliminate the possibility of a dispute on the amount of “reasonably anticipated” weather delays.  

 

The owner may choose to go further and specify the period for when the “normal” weather is to be evaluated. For example, the owner may require that any time extensions for adverse weather will be evaluated monthly and that any unused days may or may not be carried over to the following month. Even if the owner includes this level of detail in the specifications, the owner may still choose to not dictate how the contractor allows for the “normal” weather delays in the project schedule, if at all. Which leads to the question, how much ownership does the owner wish to take when planning for Mother Nature?

 

Documentation to Support Time Extension Requests

 

As it relates to the contractor’s plan, the owner may not feel the need to dictate the contractor’s means and methods for including and tracking weather delays during the project. Rather, the owner may simply take the position that it is the contractor’s responsibility to provide all the necessary information to support its claim for weather-related delays. This would include the following:

  • The amount of anticipated weather delays.
  • Documentation of the actual weather delays.
  • An analysis showing when and how the adverse weather conditions exceeded the “norm” and delayed the project completion date, or some other milestone.

 

The owner may request additional information to support the following:

  • The criteria used by the contractor to determine the amount of “normal” and “abnormal” weather delays, including the different types of delays the contractor anticipated taking place. If it is reasonable to assume that following a day or two of “normal” rain the project will also incur a day of delay due to dry-out time, then the contractor may want to include that day of anticipated dry-out time in its plan. If the contractor chooses not to allow the dry-out time, the owner may take the position that it was unreasonable to not include it, given the nature of the project.
  • Information showing how exactly the contractor allowed for anticipated weather delays in its plan and project schedules. 

 

In short, the contractor would have the burden of proof. However, even if the contractor provides all the information stated above, there is no guarantee the owner will agree with the contract’s determination of the “norm,” or any other aspect of the contractor’s method for calculating the amount of time it is requesting. And, until the contractor can provide the owner with what it deems to be reasonable and accurate information, the owner will most likely reject any requests for additional time. It should also be noted that the contractor will likely have to establish that the critical path of the project or some specific milestone was delayed by the weather occurrence, to be considered as part of the anticipated weather delays and for any time extensions.

 

There is also another twist that can occur that was not discussed in the 2013 article. During the project, the contractor may perform change order work that requires additional time. Time extension requests for change order work may fall within two categories, retrospective and prospective delays. For change order work that was already completed (retrospective), the request for time is straightforward. However, it should be noted that any delays due to adverse weather are separate from the delays due to performing the change order work.

 

The twist really occurs when there are time-extension requests for future change order work. When estimating the amount of time needed to complete the future work, contractors may fail to consider any time for additional “abnormal” weather delays it may encounter. Contractors may assume that any weather delays, beyond the “normal” weather that was originally anticipated, will be subject to a time extension. Whereas the owner may assume the contractor has considered everything when submitting its request for additional time, including any additional “normal” weather that may be encountered, because of the additional time on the project. For example, if the time needed to complete a future change is roughly one month and it pushes the contractor’s overall planned completion date from April 30th to May 31st, chances are there is a day or two in May the contractor should reasonably anticipate losing, due to “normal” weather. This is no different than the assumptions made by the contractor when it was planning the base contract work. Therefore, unless the contract states otherwise, it is best for the contractor to assume it is responsible for any additional “normal” weather delays that may occur, due to the additional time needed to complete the future change order work.

 

Conclusion

No doubt, good communication between the parties can go a long way to reduce or even eliminate the headaches that can come with sorting out project delays that include inclement weather, but the contractor must realize that it has the burden of allowing for the “norm” in its plan and proving any weather-related time extensions. And, until the contractor can reasonably and accurately establish both, the owner will most likely take the position that the contractor is responsible for all weather-related delays. 

 


John Crane has 25 years of experience in the construction industry.  He currently serves as an Associate Director at Delta Consulting Group Inc., a construction management consulting firm. John assists owners, contractors and attorneys – before, during, and after the project – to manage contracts, changes, risks and schedules as well as resolve disputes and construction delays. He can be reached at (321) 430-7077 or at jcrane@delta-cgi.com.

 

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