Welcome to the On Site channel’s Construction Administration Column. What defines abnormal weather conditions within a contract when the schedule goes over deadline and overages are invoiced?
Columnist David A. Todd, P.E., CPESC, has 37 years of experience in the architecture, engineering, and construction (AEC) industry and has performed much construction administration during that time. He will answer questions from our readers or from his own practice and will provide answers based on his understanding of the construction process.
The contractor on our road-widening project turned in a claim for 60 extra days due to weather delays. The contract documents included the Engineers Joint Contract Documents Committee General Conditions (EJCDC General Conditions), and the Agreement specified 360 calendar days for completion. Those General Conditions say additional time due to weather will only be granted for "abnormal weather." By my reckoning it was pretty much an average year for rain and snow. My analysis of weather during the project is about 20 days when it rained or snowed and twice that many following days for a wet site. In other words, he's asking for every single weather day possible, when he should only get delays if the weather was abnormal. This was back in 2007. I denied his claim, but the contractor sued over it (and other, unrelated things) and it will soon come to trial soon and I'm trying to prepare. Should I have denied his claim? [from the project manager for the consultant]
First, let's quote the whole passage from the EJCDC General Conditions. I'm using the 2002 edition, as that would have governed the project in question.
"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."
Assuming that the contractor made a timely claim for days lost due to weather, then whether he was due any days hinges on the phrase "abnormal weather." You say he claimed 60 days, which amounted to every rain day during the project and all justified days after rain (or snow) when the site was unworkable. Unless the project was in the middle of a desert, clearly the 60 days are not abnormal. Was he due some of the requested days? That would depend on the project location and climate data, and what the definition of "abnormal" is.
First, if the contractor made the claim for extra days, he should have backed it up with data. You, following the contract documents, should have then pointed out to the contractor that weather delays were only for "abnormal weather," and that the contractor had to present data as to why the 60 days requested were abnormal. And you should have given him enough time to pull that data together before ruling on the claim. I don't think it was your responsibility to sort out the normal weather from the abnormal weather.
However, once the contractor submitted that, how should you have evaluated it? What is "abnormal"? I've thought that through for myself and decided that weather days lost that are within one standard deviation from average would be considered normal and more than that would be considered abnormal.
Would that stand up in court? I'm not a lawyer and don't give legal advice, so I can't say. A standard deviation can be tricky to calculate for any variable and data set. Furthermore, I'm not absolutely sure that is the correct, objective measure. The only other objective measure I can think of is that any amount above average is abnormal. Somehow that just doesn't seem right.
It looks as if you might have done well to deny that claim five years ago. I hope you have the paperwork to back up the steps I mentioned above.
Personally, I change the EJCDC General Conditions clause for weather on most of my project paperwork, especially on linear projects. In the next column, I'll deal with an alternative way of handling this issue.
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.