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Commentary: Contractors Must Carefully Document Weather-Related Delays

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As we have already seen this spring, Mother Nature delays construction. The issue, though, is whether weather delays are severe enough for contractors to legitimately and successfully seek a contractual time extension. Several events can secure extensions for weather-related delays—which typically are not compensable, but they can grant relief from liquidated damages.

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However, not just any bad weather justifies a contractual time extension. Rather, the delay must be caused by exceptionally inclement weather—historically bad weather comparable to record events maintained by the National Weather Service.
So, your first step: visit the National Oceanic and Atmospheric Administration (www.weather.gov) and examine records to determine whether the weather conditions your project has been experiencing are, indeed, exceptionally inclement for the location and time of year. Next, you also must consider what could have been reasonably foreseen. Complaining about rain delays during the annual monsoon season won’t work.

Then, to secure a contractual time extension, you must clearly establish the causative link between unusual weather delays and critical/near-critical work activities. These have zero—or close to zero—“float” in the project schedule, which means that contractual completion is in jeopardy if those activities don’t finish on time. If a critical activity is delayed by severe weather, a time extension is usually warranted.

Conversely, weather may be severe but doesn’t contractually affect critical work because the work is located in a protected or enclosed area. In that case, the contractor’s ability to perform is not affected, no matter how critical the activity or how bad the weather.

Severe weather can affect non-critical work activities too, but these are not eligible for a time extension because they often have long float times that don’t affect project completion. In these cases, severe weather does affect work progress but does not merit an extension.

It’s important to note whether preceding delays pushed weather-dependent activities into a time period when weather is typically worse. If that’s the case, weather really isn’t the root cause of the delay, and you can seek an extension for delays caused by other reasons, which may be compensable.

For example, the project baseline schedule shows critical structural steel erection completing by Nov. 30 but is delayed because a major design error requires significant fabrication changes to the steel. The changes delay steel erection and push work into the winter, with a revised completion date of Feb. 18 for steel erection. The contractor is unable to work full weeks in December, January and February because of bad weather; as a result, the work takes an additional 20 days to complete. In this situation, the contractor is entitled to a compensable time extension for the extra 20 days it takes to complete the work.

When a contractor has met the contractual prerequisites for a time extension because of exceptionally inclement weather, the owner may grant an appropriate extension. Unjust denial of the request—or failure to deal with the matter—could result in the weather impact becoming compensable because of acceleration measures the contractor must take to complete work by a specified date.

Entitlement to a time extension completely depends on the contractor submitting proper notice, not only within the time frame specified in the contract, but also in keeping with other requirements that constitute a “valid notice.” Those often include:

• A letter delivered by certified mail to a specific party and copied to others.

• Details of the work affected by weather-related delays.

• Recommendations for delay recovery.

Pay close attention to contractual details and be sure to properly establish the cause of delays. This is especially important when Mother Nature gets involved.

Dennis R. Jasinski is director of claims services at Buric, an Ohio-based construction consultant.

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