T ECHNICAL A RTICLE

the project. Also, weather impact may be

Weather Delays and Impacts expressed as a productivity impact, not a
direct delay, which must be factored into
the schedule.
The type of project (highway or civil
works project versus high-rise building), its
Donald F. McDonald Jr., PE CCE location (Minneapolis, MN, versus San
Antonio, TX), and the calendar months of
expected performance must be considered
for weather delays. These conditions and
ABSTRACT: circumstances define what a prudent
When adverse weather is encountered, the project team must not only respond and clean owner and bidding contractor should an-
up the physical mess, but they must resolve questions of when recovery for financial ticipate and include in project cost esti-
and/or time damages is possible. This article examines how issues related to weather de- mates and schedules.
lays and impacts should be resolved for construction projects involved in claims or liti- A prudent contractor will document
gation. its expectations and define expected pro-
ductivity losses, either direct or indirect,
KEY WORDS: weather, delays, claims, litigation, contract, case law due to anticipated weather events. This
process documents the planned costs and
eather is a constant con- ADVERSE WEATHER resources required to account for the ef-

W cern for everyone, and es-

pecially those working in
the construction industry.
Better-than-anticipated weather may allow
a project to finish early and at a lower cost
CONDITIONS

Except in special circumstances,

weather delays are compensable only by a
time extension. This is referred to as an ex-
fects of weather: for example, the cost and
time involved in using pumps and well
points to dewater a site when work takes
place during a normal wet season. These
costs would not be necessary if the water
than what was budgeted—adverse weather cusable, noncompensable delay. Weather table were down during the dry season or
may literally destroy a project and bank- is considered an act of God (or more for- if the site did not hold water.
rupt owners and contractors who are un- mally as force majeure). For the purposes Additionally, the phase of construc-
prepared for weather’s fury. of this discussion, weather days are catego- tion defines a project’s weather sensitivity.
Cost engineers are in the unique posi- rized as: Highway contractors treat anticipatable
tion of being able to examine these issues weather differently than a building con-
and take actions to estimate, include con- • weather event day—the actual day of tractor. Building contractors’ weather
tingencies in the budget, plan for, and mit- rain, snow, etc., that caused a partial delay concerns are primarily focused on
igate the effects adverse weather may have or full day’s loss of production; the initial site phase (getting out of the
on their projects. The combined knowl- • “mud” day—a day, or partial day, lost ground), not after the building is dried-in.
edge of contractual issues, historical while waiting for the site to become Highway contractors are concerned with
weather norms for the project location, available again after a weather event weather throughout the entire project.
and understanding the effects weather has day; and Bidding contractors must address the
on productivity puts cost engineers in the • rework or impact day—a day, or par- contractually defined risk for weather by
best position possible to communicate tial day, of work consumed by repair- including the appropriate resources, costs,
weather risk factors to management. As a ing, reworking, or otherwise recover- and possibly a contingency amount in
project progresses, normal monitoring and ing from the effects of the weather their estimates. The contractor must ask
control functions should be performed event day or mud day. what risk it is willing to absorb. Likewise,
with full recognition of the risks weather the contractor’s baseline schedule must
can cause to all aspects of a project. Owners and contractors are expected account for weather regardless of how
When adverse weather is encoun- to take into account the average or “nor- time is charged (working day versus calen-
tered, the project team must not only re- mal” weather days for the contract time dar day).
spond and clean up the physical mess, but frame and location of the project in the Always carefully read and understand
they must resolve questions of when re- development of their production rates and the applicable contract provisions (see fig-
covery for financial and/or time damages scheduled activity durations. This means ure 1). Do not assume that past practices
is possible. This article examines how is- that each party is expected to understand or understandings between the parties will
sues related to weather delays and impacts the average number of workdays the con- prevail. Especially in US federal govern-
should be resolved for construction proj- tractor can expect to lose because of in- ment contracts, there are significantly dif-
ects involved in claims or litigation. clement weather (rain, snow, extreme heat ferent provisions and methodology used to
or cold, etc.) for the planned duration of analyze weather delays in different agen-
cies.

34 Cost Engineering Vol. 42/No. 5 MAY 2000

 productivity adjustment factors re-
Original contract duration Delayed
Contract quire extensive field experience and
contract judgment to properly implement. A
time
completion prudent estimator will extensively
extension
document their use and the reasoning
F behind such adjustment factors.
A. Weather delay/impact during
original contract period: must
show it is beyond normal antici-
pated weather. Relief: time ex- B. Weather delay/impact Schedule Aspect
tension only for critical path de- during extended contract The contract will define the time
lays. period: must show change frame within which the project is to be
order extending time did not completed and may include interim mile-
include subsequent weather stones. These contract requirements may
impact. Relief: time exten- push weather-sensitive work into periods
sion and cost impact for of higher risk. This weather risk must be
every day of weather on crit- accounted for in the final cost estimate
ical path. and in the contractor’s baseline schedule
that is used for coordinating and control-
C. Weather delay/impact after contract peri- ling the work.
od: no relief is possible, and liquidated dam- An estimator will first develop a
ages are incurred. planned production rate for the various
items of work regardless of the overall proj-
Time
ect schedule. Once the baseline estimate
is developed, the estimator then incorpo-
Figure 1—Types of Weather Delays and Effects on Contract Time rates contract requirements and con-
straints for weather and other known is-
ESTIMATING AND SCHEDULING across incomplete site work that is not sues. These adjustment factors bring about
FOR WEATHER yet able to withstand normal traffic for the results described below.
typical weather events. The cost estimate’s production rates
A prudent contractor’s estimator will • Pumps, well points, etc., to keep the are adjusted or a line item is added to ac-
take into account the expected weather for site dewatered during construction: count for the added weather impact costs.
the planned duration and location of the the need for these water control and With today’s increasingly sophisticated es-
project. Contractors working within their removal devices is limited to the con- timating software, these adjustments may
normal territory should have a historical struction period, the phase of con- be made more accurately and quickly than
understanding of typical weather patterns struction, and the time of year (wet in the past, while providing more detailed
and issues to consider in the bid. For con- versus dry seasons). documentation of the adjustments and
tractors attempting to work in an area far • Temporary construction to obtain a their overall effect on project costs.
afield of their normal projects, a careful “dried-in” status during a wet season The cost estimate information pro-
examination of what weather issues to ex- so the contractor’s subcontractors may vides the data necessary to establish the
pect should be made and documented. maintain the pace necessary to project schedule’s work activity durations.
Because weather impacts on different achieve contract-completion mile- When using critical path method (CPM)
work trades and project phases vary wide- stones. scheduling software, a scheduler develops
ly, general contractors should ensure that • Winter or wet season productivity fac- calendars that define the planned work-
their bid estimates, including subcontrac- tors; a contractor’s historical ability to hours and days the contractor may expect
tor quotations, properly account for antic- maintain certain production rates, for to work in a given month. One calendar
ipatable weather. To accomplish this goal, particular work activities, will include should be established for weather-sensitive
the estimator should develop and use some degradation for typical, expect- site operations while another should be es-
checklists to capture the effects of weather ed weather. However, an estimator for tablished for interior finish work, which is
issues on a cost estimate. The following a particular location and time of year not as weather dependent. An example is
areas should be addressed. will need to understand what the nor- shown in figure 2. This information, when
mal production rate includes or ex- input into the CPM schedule, will proper-
cludes and factor in the particular ly account for the planned weather events
Cost Aspect project’s weather effects on planned and shift activities’ planned starts and
These are costs a contractor will incur production rates. completions accordingly.
to overcome normal weather events and • The effects of hot/cold weather sea- Most contracts use a calendar day
include the following. sons on labor productivity—factored basis for computing time charged to the
into this will be the planned workday contractor for its performance of the work.
• Site cleanup and access maintenance (8 hours, 10 hours, etc.) and the time Some civil works contracts, typically for
for the normal effects of water flowing of day (daytime or nighttime). These highway construction, use a “working day”

Cost Engineering Vol. 42/No. 5 MAY 2000 35

concept of charging time. When a work- In other contracts, the standard norm may What Should Have Been Expected?
ing day contract is in force, time charges be detailed by referring to US National Can the contractor’s bid be examined
for days worked are always in question, Oceanic and Atmospheric Administration to determine what weather was expected
since most work performed is weather sen- records for the locality to determine a his- and the number of weather days to be en-
sitive. torical norm. Other contracts may be countered?
The Texas Department of Trans- silent and provide no guidance. Does the owner or its agent (archi-
portation’s (TxDOT) specifications, which For the specific project location, is tect/engineer) have any superior knowl-
use a working-day time computation there relevant historical information avail- edge that should have been conveyed to
model, state: able about the expected weather norms the contractor about weather that should
that the contractor may or should have have been expected?
A working day is defined as a cal- used? If not, then the contractor needs to No matter how severe or destructive
endar day . . . in which weather ask how relevant the information being re- the weather event may be, if the weather is
or other conditions not under the lied upon as the basis of the claim is. not unusual for the time of year and proj-
control of the contractor will per- What exactly was the weather ect location and the contractor should
mit the performance of the prin- event—rain, snow, violent winds, extreme have reasonably anticipated it, the con-
ciple unit of work under way for a heat or cold, etc.? Was it a mud day when tractor is not entitled to relief. This does
continuous period of not less it was too wet to work? Or, was it a “re- not mean that a contractor who is working
than 7 hours between 7 a.m. and work” day, when the contractor had to in the Gulf Coast region of Texas who has
6 p.m. . . . The principle unit of redo or repair previously completed work a project wiped out by a tornado spawned
work shall be that unit which that was damaged by the weather? These by a hurricane or tropical storm would be
controls the completion time of questions point out the need for detailed denied relief. This is true even if histori-
the contract . . . . daily reports being kept to document what cally that area were hit by at least one trop-
happened. ical storm yearly. It would not be expected
Generally, the TxDOT model leads that the site would be wiped out during
to generous time computations, resulting such a historically “average” storm.
in many noncharge days when the con-
tractor is actually accomplishing produc-
tive work. Unsophisticated contractors
may be lulled into believing that these
noncharge days are to their benefit. Un- May May
fortunately, as time marches on, so do the Sun Mon Tue Wed Thu Fri Sat Sun Mon Tue Wed Thu Fri Sat
contractor’s costs, which then cannot be
1 1
recovered.
2 3 4 5 6 7 8 2 3 4 5 6 7 8
9 10 11 12 13 14 15 9 10 11 12 13 14 15
WEATHER DELAYS AND EVENTS 16 17 18 19 20 21 22 16 17 18 19 20 21 22
DURING THE CONTRACT PERIOD 23 24 25 26 27 28 29 23 24 25 26 27 28 29
OF PERFORMANCE 30 31 30 31

Interior Work Calendar Site Work Calendar

With rare exceptions, weather delays
and impacts encountered during the con- anticipated weather impact days
tractual period of performance result only
in a time extension. In general terms, the Figure 2—A Comparison of CPM Schedule Workday Calendars
tests to determine if a weather event
caused an excusable delay for the contrac- Monthly anticipated adverse weather delays
tor are described below. Workdays based on a 5-day workweek
Jan. Feb. March April May July Aug. Sept. Oct. Nov. Dec.
11 10 9 6 7 9 8 5 4 5 7
Was the Weather Event Outside the Ex-
pected Norms for the Type of Work Adverse weather delays:
“The number of actual adverse weather days shall include days impacted by actual adverse
Being Performed and the Location?
weather, even if adverse weather occurred in the previous month, be calculated chronological-
The contractor needs to understand ly from the first to the last day in each month, and be recorded as full days. If the number of
what the contract requires and the risks as- actual adverse weather delay days exceeds the number of days anticipated in the schedule of
sumed by the parties. In some contract monthly anticipated weather days, above, the contracting officer will convert any qualifying de-
forms, such as those used by the US Army lays to calendar days, giving full consideration for equivalent fair weather days, and issue a
Corps of Engineers, the owner lists, by cal- modification in accordance with the contract clauses entitled ‘default
endar month, the expected number of (fixed price construction)’”
weather days to be encountered in a nor-
mal year. An example is shown in figure 3.
Figure 3—Sample US Army Corps of Engineers’ Weather Contract Language
36 Cost Engineering Vol. 42/No. 5 MAY 2000
What Documentation Exists to Show sus actual conditions) to prove entitlement The Contractor Is Beyond the Con-
What Work Was Going On, or Was to Be as well as to document the actual timing of tractual Period of Performance but Time
Attempted, at the Time? events. Extensions Should Have Been Approved
What system does the contractor have When analyzing weather impacts, be by the Owner, and the Weather Event
in place to record actual weather at the sure to include the lingering effects of the Occurs Within the Extended Time
jobsite (time, temperature, precipitation, initial event. Mud days or recovery days The contractor must prove entitle-
etc.)? This information should be docu- may be legitimate time and cost issues if ment to a time extension to move the con-
mented every calendar day, not just on the they can be shown to have delayed the tract completion date to encompass the
days when actual work takes place. A late- project’s critical path. weather delay event. Only after the con-
night or weekend rain may result in a mud tractor can prove it was entitled to the time
day on an otherwise normal workday. extension may it seek a subsequent time
What daily reports, occurrence re- WEATHER EVENTS OCCURRING extension for all weather days as detailed
ports, field memos, meeting minutes, etc., AFTER THE CONTRACT PERIOD above.
were kept to show both the weather OF PERFORMANCE
delay/impact event and the work going on
at the time? In some cases, the project runs over DECIDING THAT WEATHER
What type and quality of schedule the schedule and the contractor encoun- EVENTS ARE COMPENSABLE
was developed and maintained by the con- ters weather delays after the contract com-
tractor to show what work was planned, pletion date. There are three case types to In most contracts, the owner’s repre-
along with actual start and finish dates for examine to determine the possibility of sentative is the final arbitrator of questions
work accomplished? If CPM were used to contractual relief for a contractor. in dispute. Often this leads to problems of
plan the work, how does it include or ex- “interpretation” of what constitutes a
clude historical weather patterns? Do the weather day, or more importantly, what
CPM schedule’s resource calendars prop- The Contractor Is Beyond the Contract constitutes a mud or rework day. Does it
erly take weather into account? Time Without Eligible Time Extensions matter if the project receives 1 inch of rain
Are there photos or videos that docu- In this case, the contractor is not enti- versus 1.25 inches [25 mm/32 mm]? Can
ment both the weather event and the tled to a time extension because the con- arbitrary numbers be reliably used to de-
event’s impact? For example, after a period tract is into liquidated damages, and the fine adverse weather days? In general, the
of wet weather on a building project that contractor has no excuse for having to prudent answer to both questions is no. A
had previously been dried-in, muddy con- work beyond the contract time limit. combination of arbitrary numbers, experi-
ditions at the site could prevent interior ence in the type of work being affected,
finish work due to lack of access without and common sense most often dictate a
damaging existing work. To continue The Contractor Is Beyond the Original reasonable and proper answer.
working, the contractor had to build tem- Contract Time, With Approved Time Unsophisticated owners often leave
porary access roads and provide extensive Extensions (or Should Have Been Ap- the question of what constitutes an excus-
protection to completed work. The con- proved by the Owner), and the Event able weather day to the discretion and ex-
tractor documented its position by photog- Occurs Within the Extended Time perience of their representative. A sophis-
raphy and occurrence reports. If this happens, the contractor is enti- ticated contractor may take advantage of
tled to a time extension for every day of the naiveté of the owner’s representative in
weather delay/impact, not just what is be- the initial stages of a contract and grant
If the Contractor Can Demonstrate En- yond the anticipated norm for that loca- weather days improperly.
titlement, the Final Step Is to Quantify tion. This is because, except for the Owners, such as the US Army Corps
the Damages for Time, and in Some In- changes/delay/impact events that resulted of Engineers, often provide guidance both
stances, Money in a contractual time extension, the con- in the contract language and in their per-
What effect did the weather delay/im- tractor would not be working during this sonnel training manuals. Corps regulation
pact have on the project’s critical path period of time. number 415-1-15 provides guidance for
(some refer to this as the controlling As in any weather delay analysis, it addressing weather delays and impacts.
item(s) of work)? For projects monitored must be determined that the weather This regulation gives evaluation guidance
and managed by a CPM schedule, this is event caused a delay to the project’s criti- and requires that engineering judgment
done by using the same techniques as nor- cal path in order to gain relief. be followed when examining whether the
mal CPM delay and impact analysis. For The contractor may be entitled to re- events being claimed by the contractor are
projects not using a CPM schedule, the coup extended overhead costs. If the time compensable for time or money.
parties must identify the critical items of extension granted for previous changes
work and use that data to determine if the and delays shifted the contractor’s work to
weather event caused the final completion a later period of weather, and the previous PROMPT TIME EXTENSIONS
date of the project to slip. change order granting a time extension
In some instances, it may be incum- did not specifically include or exclude Owners often try to wait until the end
bent upon the contractor to submit com- later foreseeable weather events, then of the project to deal with the issue of time
parative weather data (historical norm ver- monetary relief may be appropriate. extensions. This is done in the mistaken

Cost Engineering Vol. 42/No. 5 MAY 2000 37

belief that denying a time extension at the by any party. It is understood that Bart Associates, Inc., EBCA No. C-
time of the occurrence provides the owner the contractor assumes all risks of 9406176, July 23, 1997—in this case the
with one more bargaining point when delays in prosecuting or complet- Bonneville Power Administration (BPA)
wrapping up the project. ing the work under the contract. contracted with Bart. The notice to pro-
Some owners believe that delaying re- ceed was issued later than the stipulated
solving time extension requests gives them A no damage for delay clause does not date, resulting in the BPA issuing a change
a way to force the contractor to accelerate affect the question of weather delay analy- order extending the schedule for 28 days.
performance. Some owners also believe sis other than to preclude recovery for Bart signed the modification and sub-
that if they do grant a time extension “pre- monetary losses in those rare instances sequently accelerated its work in order to
maturely,” the contractor will seek added when that would be otherwise possible. avoid being pushed into winter weather.
costs for ripple impacts and extended over- Several states are now making no damage Bart filed a claim for the overtime labor
head costs that the owner sees as specula- for delay clauses on public contracts ille- costs, taking the position that the modifi-
tive. In any case, failure to promptly re- gal. If this trend continues, these clauses cation had the effect of substituting 28 bad
solve legitimate time extension issues only will cease to be an issue. weather days for 28 good weather days, ne-
causes additional problems for the in- cessitating the acceleration.
volved parties. The Department of Energy Board of
Contractors often fail to make a WEATHER DATA/RESOURCES Contract Appeals (EBCA) stated that
prompt time extension request when since Bart had agreed to the new comple-
weather is involved. Contractors should, There are many weather resources tion date in the modification, it was free to
on a monthly basis, review the issue of available, and much of the information is accelerate, but that such acceleration was
time and make requests accordingly. In accessible on the Internet. The following noncompensable. The EBCA stated that if
some contracts, such as the TxDOT resources are useful in the planning, mon- Bart were concerned about the effect of
model, the contractor risks giving up an itoring, and resolving of issues concerning bad weather, it should have rejected the
opportunity for weather-related time ex- weather. proposed modification or negotiated spe-
tensions if the contractor does not respond cific compensation terms to include future
to TxDOT’s time charges on a monthly • US National Oceanic and Atmo- weather impacts.
basis. spheric Administration National Data Bart’s acceptance of a modification
If the owner fails to promptly address Center (www.nndc.noaa.gov)—at this without a weather-related adjustment pre-
the issue of a time extension, the contrac- site you may download and purchase cluded entitlement for acceleration costs.
tor may be able to successfully argue that historical weather data for most cities This highlights the necessity of “covering
because the contract time was not extend- in the US and many international all of the bases” when negotiating change
ed, the contractor had to accelerate per- sites. See the “products” pages. This orders/modifications. Make sure that all
formance to meet the owner’s unyielding information previously was available present and future potential costs and
completion date. In any event, the con- only in paper format. Electronic files schedule effects are considered. Smart
tractor may have to prove entitlement to a now can be downloaded, allowing owners will use carefully crafted accord
time extension due to the original con- one to more easily analyze the statis- and satisfaction language to preclude later
tractual period changes and delays as well tics of the data. reopening the modification for “ripple im-
as subsequent weather events. • The Weather Channel—current pact” costs.
weather information and radar plots
can be downloaded for sites world- • Construction Performance Special-
“NO DAMAGE FOR DELAY” wide (www.weather.com). ists’ (CPS) website, found at
CLAUSES • DTNKavrous Weather Services—pro- www.costengineers.com, has many
vides real-time weather radar feed and links to construction contract and re-
A “no damage for delay” clause shifts forecasting services via the Internet or lated Internet resources. Also see the
all risk of delay, for whatever reason, to the direct satellite transmission site for a bibliography of related text-
contractor, while granting a time exten- (www.dtn.com/weather). books.
sion for excusable delay events (relief = • WeatherExpert—factors weather con- • Unusually Severe Weather. Finke,
time, but no money). A typical no damage ditions into project schedules and Public Contract Law Journal #495.
for delay clause might state: links to both Primavera Project Plan- • Unusually Severe Weather. Con-
ner (P3) and SureTrak Project Man- struction Claims Deskbook: Man-
The contractor shall have no ager (www.on-sitetech.com). agement, Documentation and Pres-
claim against the owner for an in- entation of Claims. New York: Wiley
crease in the contract price or a Law, 1996.
payment or allowance of any kind CASE LAW/LEGAL RESOURCES • Weather Delay Claims by Michael S.
based on any damage, loss, or ad- Holman, can be found at
ditional expense the contractor The following legal articles and case www.bricker.com/Practice/
may suffer as a result of delays in citations provide a legal team with a start- construction/weatherbull.htm.
prosecuting or completing the ing point for understanding entitlement as • Bigelow, Inc., ASBCA No. 24376, 81-
work under the contract caused it relates to weather issues. 2 BCA 15,300—requires the contrac-

38 Cost Engineering Vol. 42/No. 5 MAY 2000

 tor to consider what is, or should be, y understanding the legal im-

•
normal weather to anticipate for the
time and location of project perfor-
mance.
Lyburn Construction Company,
ASBC No. 29581, 85-1 BCA 17,764
B plications of weather impacts
on the construction process,
cost engineers are able to pre-
pare better cost estimates and CPM sched-
ules. Once a weather event takes place,
—without a specific contract provi- resolution of time and cost issues can be
sion dealing with weather time exten- resolved equitably. By understanding what
sions, there is no specific standard for type of weather was involved and whether
what comparative weather data must the contract provides for recovery (time
be submitted. Some recommend a 5- and/or cost), resolution of the issue can
year minimum database, others a 50- take place quickly. However, cost engi-
year analysis. Some US federal board neers who do not understand or fail to fol-
cases have found that a 5-year period low these requirements may create an un-
is acceptable. necessary dispute, which results in added
• Little Susitna Construction Co. v. Soil costs and delays to finalizing the project.
Processing, Inc., S-7451, 1997, Su-
preme Court of Alaska—this case
dealt with the definition of turnkey Donald F. McDon-
and what risks the term inferred the ald Jr., PE CCE, is
contractor is taking. An initial delay the president of Con-
by the owner to the start of work shift- struction Performance
ed weather-sensitive work into adverse Specialists, Inc. (CPS)
winter weather conditions. The court in Tyler, TX, and is a
held that the owner could not force long-time member of
the contractor to absorb this risk. AACE International.◆
• Anderson Development Corp. v.
Coastal States, 543 S.W.2d 402 (Tex.
Civ. App. 1976)—a pipeline contrac- Welcome to the AACE
tor was forced to work in wet weather
beyond the contract period because of Bookstore!!
owner delays to the project. The court
awarded damages for the added time AACE International is your one-
and cost of weather events. Damages stop source for all of the leading
were awarded even though the weath- publications you need!
er events occurred after the original
contract period. The contractor was
due a time extension for the earlier AACE members receive
owner delays, thus pushing its work significant savings on books
into a later weather-sensitive time. from the best cost/project
• H. John Homan, Co. v. US 418 F.2d management publishers, and
522 (Ct. Cl. 1969)—a contractor was also get discounts on AACE’s
delayed by the owner and forced to own Professional Practice
perform work in wet weather and was Guides, Transactions, Cost Engi-
awarded damages because of cold
neers’ Notebook, and more!
weather operations productivity loss-
es.
• J.D. Hedin Construction Co. v. US
456 F.2d 1315 (Ct. Cl. 1972)—this is phone 800-858-COST
a famous case for owner-caused delay. or 304-296-8444
Reader Response Number 1023

It resulted in shifting the contractor’s

concrete work to a wet/cold winter
weather period. The resultant in- F O R YOUR
CALL EW
clement weather productivity losses
O F THE N
were found to be a compensable COPY S
event. B LIC ATION
PU
LOG!
CATA

Cost Engineering Vol. 42/No. 5 MAY 2000 39