Construction delays that are the fault of neither the Owner nor the Contractor are termed “force majeure” events—meaning, literally, “superior force” or “chance occurrence, unavoidable accident”. Contractual provisions on force majeure events are very important, because they allocate risk over which neither party has any control.
Although there are a variety of causes of force majeure events, certainly the most-common on a construction project are “abnormal weather” such as excessive precipitation, extreme cold or extreme heat, and other atypical weather. When delays caused by abnormal weather occur on a construction project, a common question is, “What constitutes abnormal weather?” Unfortunately, there is no standard in the industry (or the judicial system) for this.
“Wait a minute!”, you say. “This article cannot merely assert that there is no ‘normal definition of abnormal’ and end, right?” In the case that your project’s Contractor claims a weather-related delay—say, in the midst of a winter with an uncommonly large number of subzero temperatures—what should the project engineer or project architect do in attempting to determine entitlement in the inevitable claim?
First, obtain weather data for the vicinity of the project site. Bear in mind that precipitation and even temperatures can vary significantly over relatively short distances, so the closer the weather data-collection site’s location is to the construction site the better.
An important resource is the National Weather Service (NWS) weather station’s records in the vicinity of the project site. Because it’s a federal agency, data obtained from the NWS may be more-difficult to challenge, and many of its records are available online. If NWS records for the area of the site are inadequate or do not exist, other sources of documented weather data should be investigated. Examples include weather stations maintained by local media outlets and wastewater (sewerage) utilities—particularly those with combined sewers and sewer systems prone to high flows during wet weather; wastewater utilities are often required to maintain rain gauges and temperature monitoring stations at multiple locations in their collection areas.
Most project owners, engineers, and architects would argue that a certain amount of construction time lost due to weather (for construction that is affected by weather, such as site work, work in areas not yet enclosed and weather-tight, and/or work on building exteriors) should be considered normal and therefore should be accounted for in a contractor’s construction progress schedule. For example, weather data available at or near the project site will typically reveal an average number of days of rainfall, snow, and extreme temperatures, for each month of the year. Most owners, engineers, and architects would probably say that such data should be considered as the baseline against which may be compared the actual weather on the project, at the time of some questionable delay. Voila! “Abnormal weather” is defined, right? Well, not so fast. Read on.
An example of how one arbitration board considered such a case is the September 22, 2004 ruling of the Armed Services Board of Contract Appeals in a case where a Contractor appealed the Owner’s (U.S. Navy) imposition of liquidated damages, claiming unusually severe winter weather was an excusable cause of the delay. The Board ruled that, for purposes of excusable delay, the term, “unusually severe weather” could be interpreted as meaning either an unusual number of days of severe weather at the project site or unusually severe weather conditions during a particular period of time. The latter interpretation would, of course, be more-favorable to a contractor seeking to escape liquidated damages.
In this case, the Board partially overturned the Owner’s assessment of liquidated damages, finding that the Contractor had encountered 54 days of unusually-severe weather during the winter. The Owner moved for reconsideration of the Board’s finding, contending that the Board had applied an incorrect legal standard by allowing an extension for each day that the air temperature was less than the historical average. The Owner argued that the proper approach was to first determine the historical average number of days of unusually severe weather that could be expected at the site in each month and treat as excusable delay (e.g., meriting a Contract Time extension, and thus no liquidated damages) only the number of days that exceeded that average; however, the Board rejected this argument.
In this same case, the Owner also suggested that better planning on the Contractor’s part would have avoided much of the winter weather delay, but the Board also rejected this argument, in essence ruling that a weather delay trumped a concurrent delay that was the Contractor’s fault. (Source: Construction Claims Monthly, November 2004). If you’re an owner, engineer, or architect and the above example scares you, relax. One ruling does not necessarily constitute how it goes everywhere. But the above example should demonstrate that what appears to be clear-cut to some folks may not be so simple in a court.
Comparing the actual weather at the time of the construction delay with the “historical average” also begs the question of what constitutes “average weather”. “What is typical” and “what is abnormal” are subjective and therefore open to some interpretation by the courts and arbitration boards. Furthermore, one entity may deem a limited number of years (say, five or seven) of data to be sufficient, whereas another could potentially require a much-larger data set.
Contractual provisions on force majeure events are not typically addressed in the Specifications (Divisions 01-49); rather, they are in the General Conditions, such as EJCDC C-700 (2013) Paragraph 4.05.C.
Paragraph 4.05 of EJCDC C-700 (2013) sets forth the bases for extensions of the Contract Times all types of delays. Paragraph 4.05.C, addresses force majeure events as follows:
If Contractor’s performance or progress is delayed, disrupted, or interfered with by unanticipated causes not the fault of and beyond the control of Owner, Contractor, and those for which they are responsible, then Contractor shall be entitled to an equitable adjustment in Contract Times. Contractor’s entitlement to an adjustment of the Contract Times is conditioned on such adjustment being essential to Contractor’s ability to complete the Work within the Contract Times. Such an adjustment shall be Contractor’s sole and exclusive remedy for the delays, disruption, and interference described in this paragraph. Causes of delay, disruption, or interference that may give rise to an adjustment in Contract Times under this paragraph include but are not limited to the following:
- severe and unavoidable natural catastrophes such as fires, floods, epidemics, and earthquakes;
- abnormal weather conditions;
- acts or failures to act of utility owners (other than those performing other work at or adjacent to the Site by arrangement with the Owner, as contemplated in Article 8); and
- acts of war or terrorism.
In the above, the words, “conditioned on such adjustment being essential to Contractor’s ability to complete the Work within the Contract Times” means force majeure delays that affected the work on the project’s critical path. For example, if the remaining site work was delayed 1.5 months by winter weather but had, say, six months of float in the schedule, an extension of the Contract Times would not be warranted under the above provision.
More notably, Paragraph 4.05.C says that delays caused by force majeure-type events, such as abnormal weather, entitle the Contractor to a change in the Contract Times, but not a change in Contract Price or any other remedy.
EJCDC wrote Paragraph 4.05 to be fair to both parties byallocating risk to the party best able to control the risk of a particular type of delays. Delays caused by force majeure events (e.g., Paragraph 4.05.C) are risks that EJCDC believes should be shared by the parties. Accordingly, Paragraph 4.05.C allows only an extension of the Contract Times, without a corresponding increase in the Contract Price, as a means of allocating a portion of the risk to both parties. (Elsewhere in Paragraph 4.05, when the delay is the fault of the Owner or an entity for which the Owner is responsible, including the Engineer, then the Contractor is eligible for an extension of the Contract Times as well as a change in the Contract Price.)
While, this article has examined the standard provisions of EJCDC to force majeure events, when interpreting a particular contract it is always very important to carefully read all the relevant provisions and interpret each contract on its own merits. Project-specific changes via the Supplementary Conditions and non-standard contracts can, and often do, allocate risks differently than do EJCDC.
Kevin O’Beirne, PE, CSI, CCS, CCCA is the 2013-2014 Vice-Chair of the Engineers Joint Contract Documents Committee (EJCDC) where he is the ACEC Delegation Chair and a member of EJCDC’s subcommittees for Construction, Procurement, Design/Build, and Public-Private Partnerships. He is a Principal Engineer and Manager of Standard Construction Documents at ARCADIS U.S., Inc.(www.arcadis-us.com) in Buffalo. ARCADIS