Welcome to the On Site channel’s Construction Administration Column. Join us as we continue a conversation regarding contracts and weather delays.
In David Todd’s last Construction Administration Column, he recommended an alternative to standard language regarding weather delays. David’s suggestion spurred some discussion of the topic, so here are his further thoughts.
Thanks for the article “Changing Contract Wording to Accommodate Weather Delays.” However, I'm curious about the following: is not there any provision for Force Majeure in the contract? Generally, it comes under the contractor's responsibility to get adequate knowledge about the yearly weather conditions of the proposed/designated work site. Accordingly, the contractor needs to make the base plan and should get approval from the owner, so why incorporate such extra language?
Thanks for the comment. Readers can follow this link to the article in question, which suggested an alternative to standard language regarding weather delays in construction -- language that allows the contractor extra time for any inclement weather rather than just for abnormal weather.
The question is, why do that? Why not just go with standard contract language, which requires the contractor to be familiar with normal weather patterns, track weather during construction, and ask for additional contract time any time the weather becomes abnormal to the detriment of the project.
The reason is to shift the risk for weather conditions from the contractor to the owner. I'm talking only about the time impact of weather, not any other factors that abnormal weather might cause, such as damage to materials not properly stored, or damage to some construction partly finished. These risks remain with the contractor.
A construction contract defines risk between owner and the contractor. Standard language puts all the risk for weather on the contractor. If we shift the time risk associated with weather to the owner, the contractor should be able to give a cleaner, lower price for the work, knowing he will not be responsible for those delays.
This type of change can be made when a contract is not rigidly time-sensitive. If the owner can stand some delays and not be hurt, why not shift the weather delay risk to the owner and get a better price for the project? If you make that shift, you then need to have a procedure in place to administer the weather days portion of the contract. We have had a contractor look at nearby weather station data and try to claim a weather day any time it rained at the weather station. If the data showed that from midnight to 1:00 a.m. 0.01" of rain fell, he tried to claim the day. The administrative procedure described in the first article eliminates this kind of argument.
So this is just an alternative approach. If a project is time-sensitive (e.g., the road has to be opened by a certain date or the store has to receive a certificate of occupancy by a certain date), use the standard language for weather delays as given in the Engineers Joint Contract Documents Committee (EJCDC) or the American Institute of Architects (AIA) pre-printed documents. However, if giving a little on the schedule is possible and costs are a factor, consider this alternate approach.
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.