Paying a Contractor for Extra Time Due to Weather Delays

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.