In an article, Wrestling in the Mud or Dancing in the Rain: Planning for Mother Nature, published by Construction Claims Advisor in March 2013 (Vol. 2 – Issue 11), the focus was placed on the questions and scenarios stakeholders need to consider when planning and tracking adverse weather in the project schedule. The article addressed the ambiguities in some standard contract clauses addressing weather-related delays and time extensions. The 2007 edition of the American Institute of Architects’ AIA-A201 Standard Agreement (AIA) and the ConsensusDOCS were used as examples of contracts that included such ambiguities. Although these contract documents have been updated in recent years, the clauses referencing weather-related delays and time extensions remained relatively unchanged.
What was previously Section 18.104.22.168 of the 2007 AIA-A201, Section 22.214.171.124 of the 2017 AIA-A201 states:
“If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction.”
Similarly, Section 6.3.1 of the ConsensusDOCS 200 – Standard Agreement and General Conditions Between Owner and Constructor – 2001, Revised April 2018, now states:
“If the Contractor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of the Constructor, Constructor shall be entitled to an equitable extension of the Date of Substantial Completion or the Date of Final Completion. Examples of the causes beyond the control of the Constructor include … (m) adverse weather conditions not reasonably anticipated.”
Anyone reading these clauses will most likely have the same question, what is “normal” or “reasonably anticipated” weather and how can it be quantified and monitored? As discussed in the 2013 article, there are several considerations when determining the amount of “reasonably anticipated” weather delays for a project. But, to lower the risk of any disputes, the parties simply need to agree on the amount, since it is just an estimate. As part of this process, the owner needs to ask itself why it cares to include the time associated with anticipated weather delays as part of the contract duration. If there is no specific reason, such as financing or public information, that requires a best projection of the completion date, the owner may be best served by providing a time extension for all weather-related delays, provided the alleged weather delays meet other contract requirements…
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John Crane has 25 years of experience in the construction industry. John assists owners, contractors and attorneys – before, during, and after the project – to manage contracts, changes, risks and schedules as well as resolve disputes and construction delays. He can be reached at (321) 430-7077 or at email@example.com.