My children have been mad at Mother Nature over the past month. One day ... jeans, turtle necks and jackets. The next day ... shorts and flip-flops. At least in the South we have not had to deal with 30 inches of snow like on the East Coast. That kind of weather can cripple a construction project and cause months of delay to the schedule.
As Spring approaches, how do you address the impact of unusually severe weather? Traditionally, the parties' construction contract will dictate who bears the risk of loss in these types of situations. Here are some general rules:
- The contractor is usually entitled to additional contract time, but not additional compensation for weather delays. The AIA contract documents provide 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." The ConsensusDOCs provide that "if the Contractor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of the Contractor, the Contractor shall be entitled to an equitable extension of the Contract Time. Examples of causes beyond the control of the Contractor include, but are not limited to, the following: ... adverse weather conditions not reasonably anticipated ..."
- Delays must be attributable to "unusually severe" weather or weather "not reasonably anticipated." Of course, by its very nature, such a claim will be factually driven. The contractor should be prepared to establish this by reasonable documentation, such as weather data from the National Oceanic and Atmospheric Administration.
- Weather analysis should be geographically limited. Having moved from Washington, D.C. to Nashville in 2006, I can appreciate this point. The entire Middle Tennessee closes down, including the government and schools, at the slightest hint of snow (...exaggerated slightly ...), but it takes 30 inches in D.C. to paralyze the roads and commuters. The point is that "unusually severe weather" on a Nashville construction site may be different than a site in the nation's capitol.
- The delays must actually impact the schedule. While you may think that down-time due to weather should automatically entitle the contractor to a time extension, it will depend largely on the contract provision addressing weather delays. You will have to determine whether the inclement weather affected material delivery, access to the site, safety measures, etc.
As with most other issues involving time and money, the parties' contract will determine what happens when Mother Nature refuses to cooperate with your construction schedule.