"Walking in a Winter Wonderland" - Freezing Weather - Are You Protected?
March 7, 2019
By: Eric J. Hulett
“The coldest weather in a generation.” CBS Evening News (January 30, 2019)i. It is said that the only things in life that are certain are death and taxes – but if you are a construction contractor, or an owner with a tight completion schedule, add to that “bad weather.”
However, cold temperatures and other severe, bad weather do not necessarily entitle the contractor to a time extension. What’s in your contract? What information have you collected about how the severe weather, whether cold temperatures, ice, snow, or rain, has impacted the progress of the work, and how carefully have you documented which trade, which part of the work, was impacted?
The critical issues involve (1) distinguishing "normal" weather at the project site from "abnormal" weather that could not be reasonably anticipated, and (2) how to measure the impact of "abnormal" weather on the critical path. But, not all bad weather justifies a time extension. “On a job of any significant duration, it is always possible that adverse weather could occur that might detrimentally impact the contractor's operations. As a consequence, contractors are expected to anticipate a certain amount of adverse weather when preparing their price and schedule.” However, “weather that impacts construction activities that are not on the critical path should not cause a compensable delay in completing the project.”ii
There is no real dispute that adverse weather can also result in a loss of efficiency rather than cause a shut-down of the entire project. One common scenario is where the owner's delay pushes the contractor into winter-time construction. The U.S. Court of Claims has recognized that winter weather conditions reduce labor efficiency. Moreover, there are several industry studies that support this common sense understanding.
Your contract is critical --- as well as what data you gather to show the owner, or architect, or general contractor, or arbitrator, or court how the weather was abnormal, how it could not be anticipated, and how it specifically impacted the portion of the work requiring an extension. For example, the J. J. Brown Co. v. J. L. Simmons Co. case (Illinois 1954) demonstrates that even extreme cold may not excuse performance and allow for compensable delay if the contract language anticipated those conditions and required the contractor to make arrangements to continue working in cold conditions. Similarly, in the Missouri Roofing Co. v United States case (Missouri 1973) the court awarded additional time and payments because the contractor provided detailed weather reports and other proof to show that the specific trade in question, roofing, was impacted and that the government’s contracting officer had previously awarded an extension for similar weather. More recently, in the Handex of Carolinas, Inc. v. County of Haywood case (North Carolina 2005), the construction contract “provided that 'abnormal weather conditions' were to be determined based on the National Weather Service's thirty-year average” which the Court found to be ambiguous, allowing contractor’s payment claim to escape dismissal and go to the jury.
What’s in your contract? The leading construction industry form contracts may not serve your purposes, without careful editing. The AIA 201, General Conditions (2017), allows time extensions for “other causes beyond Contractor’s control” (8.3.1) and for “adverse weather” that was “abnormal for the period of time” which the Contractor could not reasonably anticipate and which had an adverse effect on the schedule (18.104.22.168). The EJCDC General Conditions (C-700) also allow for a time extension for “abnormal weather conditions” which cause delay “beyond the control of Contractor” if the extension is “essential to Contractor’s ability to complete the Work within the Contract Time.” (C-700, 12.02 & 12.03)iii
Note that these industry form contracts use general terms without further defining what is “abnormal” or how you measure it or what is “adverse” weather under the circumstances of a particular project. “Attempting to capture all or a significant portion of these conditions in contract language can be quite challenging. Moreover, the same weather condition during one season or during a particular construction sequence may prove quite harmful but during another time cause little or no delay. Defining adverse weather in a vacuum does little good. Weather that may prohibit exterior painting work may have little effect on interior operations. Similarly, a very heavy but short duration rain can cause a delay well beyond the duration of the rainfall itself. Attempting to capture all the possible permeations during contract negotiations and drafting is extremely difficult.”iv
Jackson Kelly’s Construction Industry Group regularly advises construction project owners, designers, contractors, and others on the risks you face, how to help you reduce and plan for those risks, and to guide you through the disputes that regularly surface on construction projects --- so that our clients aren’t left out in the cold.
i https://www.cbsnews.com/live-news/polar-vortex-2019-01-29-winter-storm-jayden-path-latest-weather-forecast-snow-storm-live-updates/. Charleston, West Virginia, January 31, 2019, temperature 3 degrees. (https://www.timeanddate.com/weather/usa/charleston-wv/historic) Martinsburg, West Virginia, January 31, 2019, temperature 5 degrees. (https://www.timeanddate.com/weather/@7316536/historic) Lexington, Kentucky, January 31, 2019, temperature 1 degree. (https://www.timeanddate.com/weather/usa/lexington-fayette/historic) Akron, Ohio, January 31, 2019, temperature -2 degrees. (https://www.timeanddate.com/weather/usa/akron)
ii 2 Bruner & O'Connor on Construction Law § 7:230.
iii The Federal Acquisition Regulations excuse delay arising from “unforeseeable causes beyond the control and without the fault or negligence of the contractor,” including “unusually severe weather.” FAR 52.249-10(b). The Army Corps of Engineers allows for time extensions due to “unusually severe” weather, using 10-year historical weather data. ER 415-1-15 (“Construction Time Extensions For Weather”). To qualify for a time extension the delay “must prevent work on critical activities for 50 percent or more of the contractor’s scheduled work day.” Id.
iv 2 Bruner & O'Connor on Construction Law § 7:230.