Welcome to the On Site channel’s Construction Administration Column. Here, David A. Todd gives his recommendation on the Engineers Joint Contract Documents Committee (EJCDC) General Conditions clause for weather.
In my last column, I dealt with an issue concerning delays for weather. The answer I gave had to do with the weather provisions in the 2002 edition of the EJCDC General Conditions. Those provisions are:
"Where Contractor is prevented from completing any part of the Work within the Contract Times due to delay beyond control of Contractor, the Contract times shall be extended in an amount equal to the time lost due to such delay, if a Claim is made therefore…. Delays beyond the control of Contractor shall include, but not be limited to, acts or neglect by Owner, acts or neglect of utility owners or other contractors performing other work as contemplated by Article 7, fires, floods, epidemics, abnormal weather conditions, or acts of God."
As I wrote before, for most of my projects I change this language. My projects will usually have a fixed calendar duration (120 calendar days, 180 calendar days, or whatever) as the construction time. On occasion, the number of days will be left blank, to be filled in by the bidder.
In these circumstances, I’ve determined how long I believe it will take to construct the project. I will probably take a few weather days into account as I’m making that determination, but I won’t do a detailed assessment of what the dominant climatic conditions are during the period of the project and whether the contractor is likely to lose a little time or a lot of time.
Using the Supplementary Conditions, I’ll change the delays for weather provisions to the following.
"Contractor will be allowed delays for weather conditions, based on the concurrence of Contractor and Owner or Engineer, for two circumstances: 1) isolated inclement weather, wherein the project site is determined to be unworkable for days of precipitation and days following for short times between otherwise good weather; and 2) sustained inclement weather, wherein the project site is determined to be unworkable for a sustained period of time, such as the winter months, with only an occasional working day within the sustained unworkable conditions.
If Contractor believes either condition applies, a request shall be made to Engineer or Owner for a site meeting and a joint determination of the site conditions and approval of the delay. Engineer will catalog these approved delays and will incorporate them into a Change Order for signature of Owner and Contractor."
I’m trying to accomplish two things with this language. First, this takes the risk for bad weather off of the contractor and puts it on the owner. This change in responsibility should reduce bids received and thus the construction cost.
Second, I’m trying to establish an administrative procedure that doesn’t require the execution of a change order each time a day is lost due to weather. What happens with this language is that the engineer (or other design professional administering the project) meets the contractor at the site when the contractor says weather is delaying the project. If they both agree that the site is unworkable, one day is administratively added to the completion date. If they can’t agree, the owner has the final say. Unworkable days are accumulated, and an end-of-project reconciliation change order establishes a new completion date. I keep track of these on a spreadsheet and transmit a printout of the spreadsheet to contractor and owner from time to time during construction.
In practice, it works a lot easier than that. If I come to work in the morning and learn that it’s pouring rain at the job site or that there’s a foot of snow on the ground, I simply talk with the contractor on the phone. The only time a site meeting is needed is at the end of a wet period, when only a site visit will tell how wet the site is.
Clearly this procedure doesn’t work when a project must be done by a fixed date, with the contractor taking the risk for weather.
I’ve used this procedure in nearly 50 projects and have never had a problem with it or a dispute resulting from it. The owner is happy with lower bids. The contractor is happy, knowing that the risk for weather is not his risk. The design professional is happy to have an easy procedure in place. The governing board (or whoever approves change orders) is happy not to have to deal with a monthly change order for dealing with a few weather days.
The key is timely administration of the procedure and frequent distribution of the status of weather days, with the new completion date indicated.
A senior engineer and corporate trainer of engineering for CEI Engineering Associates, Inc. David has 36 years of experience as a consulting civil engineer. His experience includes water, wastewater, stormwater, roads, and solid waste infrastructure. For much of the last 20 years he has been involved with stormwater issues. Specifications and construction administration have been a specialty of his within civil consulting engineering . He has BS and MS degrees in Civil Engineering, is a registered engineer in four states, and a Certified Professional in Erosion and Sediment Control.