Mother Nature plays an important role in every construction project. Torrential rains, sub-zero temperatures, gale-force winds, and layers of ice and snow are some hallmarks of nature-related construction delays.
The issue, though, is whether these delays impact construction enough for contractors to legitimately and successfully seek a contractual time extension. Weather-induced time extensions typically are not compensable, but grant relief from liquidated damages.
Not just any weather justifies a contractual time extension. The first step is to check your project specifications for weather-related clauses and how they are to be handled. In most cases, the specifications will state that the delay must be caused by exceptionally adverse weather; however, some specifications make the contractor responsible for all weather conditions.
Absent weather information taken directly at the site, the next step is to visit the National Oceanic and Atmosphere Administration’s (NOAA) National Weather Service at www.weather.gov (in the US) or Environment Canada at https://weather.gc.ca/canada_e.html (in Canada) to examine historical records and determine if the weather conditions experienced were exceptionally inclement for the location and time of year. The data should come from the weather station closest to the site. Contractors also must consider what could have been reasonably foreseen, because complaining about lost work days due to rain delays during a locality’s anticipated monsoon season likely will not be considered justification for a time extension.
To successfully secure a contractual weather-related time extension, a contractor must clearly establish the causative link between the delaying weather conditions and the “critical path” work activities. Critical path work activities have zero or close to zero float in the project schedule, which means the project’s contractual completion is prolonged if the activities don’t complete on the scheduled dates. If a critical path activity is delayed by severe weather, entitlement to a time extension should be investigated.
Conversely, if the critical work area is protected or in an enclosed area, and the contractor’s ability to perform work successfully is not affected by weather, then the contractor is likely not entitled to a time extension due to adverse weather.
Severe weather can also affect non-critical path work activities, but the effect of weather on these activities is not eligible for a time extension because of schedule float (i.e., non-critical path work activities can be performed at a later date without delaying the project’s completion date). In this instance, severe weather may affect the progress of work, but not to an extent that project completion is delayed.
It is important to note if preceding excusable delays push weather-sensitive activities into a time period when conditions are typically worse (i.e., winter, or a rainy spring). If that’s the case, weather isn’t the root cause of the delay, but it becomes a contributing factor to the progression of future activities on the critical path. The contractor can seek a compensable time extension for the weather delays caused by other reasons.
The project baseline schedule showed that critical path structural steel erection was to be completed by November 30, but it was delayed because a major owner-caused design error resulted in significant fabrication changes. These changes delayed the steel erection work and pushed activities into the winter months, with a revised completion date for steel erection of February 18. The contractor was unable to work full weeks in December, January, and February because of cold, windy, and snowy weather. As a result, this critical path work took an additional twenty days to complete.
The contractor may be entitled to a compensable time extension for the extra twenty days that it took to complete the work. In this instance, historical weather conditions are not relevant, because the contractor is entitled to a day-for-day time extension for unanticipated delays related to working in inclement conditions.
Once a contractor meets the contractual prerequisites, the owner may grant the appropriate extension. An unjust denial of the time extension request, or failure by the owner to timely deal with the matter, could result in the weather impact becoming compensable if the contractor accelerates to mitigate critical path delays caused by issues beyond the contractor’s control.
Entitlement to a time extension depends on the contractor submitting proper notice of the anticipated or actual delay. Notice must not only be given within the time frame specified within the contract, but also comply with requirements typically cited in contracts as constituting “valid notice.” These requirements for weather-related delays typically include:
- Notice letter addressed to a specific party(s)
- Delivery of the letter in a specified way and time (e.g., within 10 days of the occurrence and registered mail via the US Postal Service)
- Details of the work specifically affected by weather-related delays
- Requirement to make recommendations for delay recovery
Pay close attention to the contract’s details, or a legitimate request for a time extension could be denied simply because the contractor failed to follow the terms and conditions of the contract. Follow the terms and conditions of the contract carefully and seek legal consultation to verify and support the issue.
To ensure the compensability of a time extension is correctly determined and resolved, it’s important to properly establish the cause of delays to a project in a timely manner. This is especially true when Mother Nature gets involved.
Dennis R. Jasinski is an Associate Director at Berkeley Research Group’s Global Construction practice in Atlanta, Georgia. For more information, visit www.thinkBRG.com or contact him at firstname.lastname@example.org