Weather Delays: In Anticipation of Precipitation
INTRODUCTION
Inclement weather takes several forms – extreme temperatures, precipitation and wind are the more common examples.
Inclement weather in contracts and contract programs requires the following key considerations:
- the climactic conditions of the site location, having regard for normal conditions and seasonal variance;
- the potential effect that inclement weather conditions could have on the site, varies based on the type of work being performed;
- ensure contract terms adequately describes inclement weather and reflect the risk accepted by the parties;
- appropriately model the inclement weather obligations in the contract program, having regard to the above; and
- contractual entitlement is important, as no relief is available unless it is an explicit term within the contract.
As with any EOT claim, there needs to be entitlement and the contractor must be able to demonstrate that the inclement weather caused a delay to critical path activities. Contractors must capture records of the actual effects of inclement weather, including consequential impacts.
The impact can vary depending on the type and location of the work being performed, for example: in-ground service works could be delayed on the rain day and continue to be delayed the following day, while other above-ground works at the same site would only be affected on the rain day and suffer any further delay.
It is important to make the above distinctions because the effect on the project can extend beyond the actual duration of the inclement weather event. Diligent record-keeping demonstrating the continuing or consequential effect is required to support this type of claim., the evidence of the continued effect requires diligent record-keeping. This might include documents such as photographs, time-lapse camera recordings, site diaries, and Bureau of Meteorology (BOM) data, which can demonstrate:
- the change in site conditions, before, during, directly after and any prolonged effect including further mitigation measures;
- the veracity and impact, the extent of inclement weather and if any damage was caused; and
- the effect on labour, the number of labourers not working, the number of labours dedicated to perform remedial work and the number of hours for each.
DEFINITION OF INCLEMENT WEATHER
Inclement weather can be defined in the contract but generally cover a variety of events including:
- adverse temperature (high temperature, low temperature or extreme humidity) can cause work to stop, additional breaks to be taken and can reduce progress and productivity;
- precipitation:
- rain (including sleet and hail) can cause work to stop, additional breaks to be taken, reduce progress and productivity and can result in ongoing issues particularly if no mitigation measures are in place;
- snow (including snowfall and snow cover or frost) snowfall can have a similar effect as rain above, and snow cover and have a prolonged effect particularly if no mitigation measures are in place; and
- wind (continued high velocity or high gusts) can cause delay or disruption depending on the work affected and the duration of the event, this particularly affects work involving cranes.
AACE states that: [1]
Adverse or unusually severe weather – Some bad weather is to be expected on almost every project. But, pushing weather sensitive work from good weather periods into periods of bad weather, or encountering unusually severe weather, may impact productivity (e.g., earth backfill and compaction operations pushed into wet weather periods).
PLANNING FOR INCLEMENT WEATHER
The Society of Construction Law’s Protocol [2] states that a program should account for weather stating:
“The Accepted Programme shall take into account all time risk allowances including time for the conditions (rain, wind, frost and snow) reasonably to be anticipated by to Contractor…”
This may indicate that allowances should be made for anticipated weather within the contract (baseline) programs. It is advisable to document such allowances and qualifications within the basis of schedule. Furthermore, it is the weather in addition to this allowance that would be categorised as inclement weather and become claimable as an EOT.
Understanding your contract’s definition of inclement weather is important when considering your entitlement to a claim. For example, the contract may limit the definition of inclement weather to precipitation only with other types of inclement weather being at the contractor’s risk. However, if the contractor is entitled to claim for unforeseen events and there is a period of unexpected high winds, which affects an activity on the critical path to completion – the contractor may be entitled to an EOT claim.
EFFECT OF INCLEMENT WEATHER
The below are examples of how inclement weather can cause delay or disruption:
- Delay: may occur when adverse weather conditions prevent construction work from proceeding as planned. For example: the temperature drops below the specified range to place concrete. The concrete is not placed the day it was intended but is placed the subsequent working day causing 1 working day of delay;
- Disruption leading to Delay: may occur when adverse weather conditions hinder construction work but do not stop it from proceeding. For example: the temperature increases during road construction. So there is no single lost day, but the rate of progress is reduced due to the reduced productivity caused by additional break requirements for the labour to hydrate and cool down.
- Disruption: may occur stopping or slowing the progress of non-critical path work. For example: a typical rain day occurs on an open construction site and stops the foundation work for 1 working day. However, if the design for the structure is not complete, and is driving the critical path, then the critical path is off-site and not affected by the rain day.
FORCE MAJEURE VS INCLEMENT WEATHER
Force majeure events are different to inclement weather events, the typical definition being:
- events or circumstances beyond the control of the parties, which makes it impossible or impractical to perform the obligations under the contract.
This means a force majeure claim will typically include events that could not have reasonably been foreseen prior to entering into a contract. These events can include natural disasters, acts of God, wars, or other defined events.
The distinction between force majeure and inclement weather is important because the provisions and entitlements of the parties under the contract are likely to differ. For example, a force majeure clause may provide the right to terminate the contract, while inclement weather may give rise to a right to claim an EOT and/or additional payment. There may also be opportunities to position an inclement weather event under a force majeure event, e.g. a period of high unexpected rainfall or a prolonged heatwave.
It is important to carefully review the provisions of the contract to determine the specific entitlements of the parties in the event of force majeure and inclement weather.
TYPICAL CONTRACT PROVISIONS
The exact provisions regarding inclement weather in the Australian standard form contract vary between the standard forms. However, in general, standard form contracts in Australia include provisions that address the impact of weather conditions on construction projects.
Some common provisions in Australian standard form contracts include:
- Weather-related extension of time: This provision allows the contractor to claim an extension of time for the completion of the project if inclement weather affects the progress of the works;
- Weather-related compensation: This provision allows the contractor to claim additional payment in the event that wet inclement weather increases the cost of the works;
- Force majeure: This provision sets out the circumstances in which the contract may be suspended or terminated due to events beyond the control of either party, including wet inclement weather;
- Mitigation of weather-related risks: This provision requires the contractor to take reasonable steps to minimize the impact of wet inclement weather on the progress of the works; and
- Notice requirements: This provision requires the contractor to give notice to the employer if inclement weather affects the progress of the works.
Common standard form contract provisions in New Zealand [3] address the impact of weather conditions on construction projects include:
- Extension of time for completion: The contract allows for an extension of time for completion of the works if the contractor is delayed by events that are outside their control, such as adverse weather conditions. The contract sets out a process for the contractor to apply for an extension of time and for the parties to agree on the length of the extension;
- Loss and expense: The contract allows for the contractor to claim additional payment for any loss or expense incurred as a result of adverse weather conditions that are outside their control. The contract sets out a process for the contractor to make a claim and for the parties to agree on the amount of any payment;
- Site access and safety: The contract requires the contractor to ensure that the site is safe and accessible during adverse weather conditions. The contractor is responsible for implementing appropriate measures to protect the works, the site, and any personnel involved in the construction work; and
- Suspension of works: The contract allows for the engineer to suspend the works if they consider that adverse weather conditions pose a risk to the safety of personnel or the works themselves. The contractor is required to follow any instructions given by the engineer during a suspension of works.
Overall, these provisions are designed to balance the interests of the parties involved in a construction project and to provide recourse for instances when inclement weather arises.
It is important to note that the provisions regarding inclement weather in the Australian or New Zealand standard form contract may vary depending on the standard form used and the specific circumstances of each project.
Assumptions and Risk
Inclement weather is a known risk if working in an exposed environment, but the quantity and impact are unknown when entering into a contract, therefor quantification of risk when entering into a contract can be difficult but necessary.
To avoid the potential risk ownership of delays, additional costs, and disputes related to weather events during a construction project, contractors need to take a proactive approach to assess and manage weather-related risks. One way to do this is by having a prudent estimate, which considers the expected weather for the planned duration and location of the project.
Contractors will typically have access to historical data (from previous projects) to understand and plan for the likely weather patterns and associated issues when preparing project bids. This understanding of the risk posed by inclement weather, can help the planning for weather-related risks and avoid underestimating the time and/or resources required to complete the project. However, contractors working in an area far from their normal projects (so previous project data is unreliable) should conduct a careful examination of what weather issues to expect and document their findings. By doing so, they can identify potential weather-related risks and factor them into their project planning and cost forecasting, which is essential to correctly tender projects and mitigate potential delays.
Overall, taking a proactive approach to assessing and managing weather-related risks can help contractors to avoid potential delays and additional costs, and to ensure that their projects are completed on time and within budget. It can also help to prevent disputes between the parties involved in the project, as each party will have a clearer understanding of the potential weather-related risks and their respective responsibilities for managing them.
The assumptions around what to include in a project duration will depend on the contract provisions as described above. No matter who owns the risk of inclement weather it may still be appropriate to model the inclement weather risk within the contract program.
Modelling risk in the contract program (Net vs Gross)
A contract program can be described as a net program or a gross program and how the inclement weather risk is modelled in the program differs as well as the contractual administration, as described below:
- Net program: If inclement weather causes a delay in a task that is part of the critical path in the net program, it will result in an overall delay in the project completion date. Contractors would need to closely monitor the critical path and take action to minimise the impact of inclement weather delays on the critical path; and
- Gross program: On the other hand, is a schedule that includes all tasks in the project, including any allowance for inclement weather in the contract. This type of schedule is used to show the entire project timeline. Contractors will still need to closely monitor the critical path and take action to minimise the impact of inclement weather delays on the critical path however an inclement weather day will be deducted from the contract allowance each time an inclement weather delay event is deemed to have occurred.
Modelling risk in the contract program (seasonal variation)
Many activities on construction projects are exposed to the impact of seasonal variations in weather, which can affect the project schedule and budget. By modelling the potential impact of seasonal variations on contractors can identify potential risks and develop strategies to mitigate them. Those impacts of seasonal variance which cannot be mitigated can be modelled in the program the outcome of delays can be modelled more accurately.
For example, if there is a bridge construction over a creek, which is known to flood twice a year. The activities that are sensitive to this event should be identified and modelled accordingly. If a separate delay occurs (delay event 1) before the completion of these event sensitive activities, which results in these event sensitive activities now conflicting with the event (the creek flooding). There is an additional delay event that was not previously planned (delay event 2). Then the true EOT of delay event 1, should account for delay event 1 and delay event 2, within the EOT claim.
CONTRACT CLAIMS AND ENTITLEMENT
The effect of inclement weather on the progress of the work is usually excusable under most standard form contracts. These provisions may be contained in specific terms, general terms or both. Knowing how the contract deals with inclement weather will allow inclement weather claims to be correctly positioned.
Most importantly, any contract provisions regarding the timely submission of extension of time claims should be followed. Despite any previous understandings between the parties or the seemingly indisputable fact the work could not proceed due to inclement weather, the notification requirements of the contract should be strictly adhered to.
Contract provision typically identify who owns all or a limited portion of the risk, being the principal or the contractor. A typical contract risk allowance limiting the number of inclement weather days could be: Contractor is to allow 40 days of inclement weather.
In the example above only after the 40 days of inclement weather has been incurred would any further inclement weather days become claimable.
A typical cost limitation for inclement weather could be: Contractor is entitled to claim an extension of time but not entitled to EOT costs.
In the example above, the contractor would be entitled to claim all inclement weather delay, which would provide relief from liquidated damages but would not be entitled to claim the delay costs.
Some contracts may limit the definition of what constitutes a one-day delay due to inclement weather – for example: An inclement weather delay is considered to have occurred when there has been 4 or more consecutive hours of inclement weather within the work day.
In the example above, a one-day delay is only claimable once the limit has been surpassed. If the limit is not surpassed, the rain affects work but there is no entitlement to claim an EOT.
High wind speeds can stop crane lifts from occurring if the crane lifts are on the critical path this will cause delay, if the wind speeds occasionally gust at specific points in the day the lifts may still occur but in a disrupted manner so the crane is not being fully utilised, giving rise to a disruption claim. In this case, an assessment of the planned number of lifts versus the number of lifts achieved and an assessment of the weather impact could be undertaken.
To claim an extension of time, you will typically need to demonstrate that the inclement weather event impacted works residing on the critical path. If the critical path is off-site such as design or if the critical path is through the installation of internal works not affected by inclement weather, no extension of time would be claimable.
When proving your claim it is important to rely on accurate and contemporaneous documents such as:
- daily diaries that accurately detailed the cause and effect of the delay:
- photos of the site showing the conditions before the rain, the conditions after the rain (mud / standing water) and newly laid road plates (would be applicable for the example above);
- images from a time-lapse camera;
- a screenshot of the weather in real-time from the BOM;
- the timely submission of any contractual documents (Notice of Delay); and
- to establish disruption, monitoring the rate of progress during periods of wet weather and during unaffected periods, to demonstrate that work could progress as planned is a useful source of data.
If the cost of mitigation measures is claimable:
- Establish a wet weather management plan: develop a detailed plan for managing wet weather risks, which should include procedures for monitoring weather conditions, identifying and mitigating potential hazards, and responding to any incidents that do occur.
- Use protective measures: utilise protective measures such as tarps, covers, and scaffolding to protect equipment and materials from damage caused by rain.
CONCLUSION
Inclement weather can have significant and far-reaching consequences on a project. When entering into a contract, it is important to clearly define inclement weather and the associated risks through the use of historical data and modelling techniques.
Understanding the contract provisions around claiming relief for inclement weather and strictly administering claims in accordance with the contract, will assist in achieving the best outcome.
When inclement weather does occur, detailed record-keeping is important, particularly when claiming relief for the consequential effects of inclement weather.
By Mr D Such, Associate Director at Calibrate Consulting
To learn more about inclement weather claims, please contact the author or the Calibrate Consulting office at info@calibrateconsulting.com.au or +61 9188 7444.
REFERENCES
Andrew Burr – delay disruption in construction contracts (fifth edition) published 2016 by Informa Law from Routledge
Donald F. McDonald Jr., PE CCE – Weather Delays and Impacts – Cost Engineering Vol. 42/No. 5 MAY 2000
AACE – AACE International Recommended Practice No. 25R-03 – ESTIMATING LOST LABOR PRODUCTIVITY IN CONSTRUCTION CLAIMS – TCM Framework: 6.4 – Forensic Performance Assessment
The Society of Construction Law – The Society of Construction Law Delay and Disruption Protocol 1st edition – October 2002 (October 2004 reprint)
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