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Adverse Weather - Employer or Contractor Risk

13 replies [Last post]
Nicos Pozatos
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Generally Adverse Weather is a nutral ivent and the Contractor is entitled to extesnion of time but not any cost.

Somebody sugested that if an extension of time is granted for whatever reason and adverse weather occur during the extended period then adverse weather is considered Employer’s Risk and the Contractor is automatically entitled to extension of time with cost.

Please give your opinion.

Replies

Stuart Ness
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Shahzad,

Foreseeable adverse weather is not grounds for an excusable delaying event, and therefore is not at the Employer’s Risk.

To return to Nicos’ last post, if the Contractor is pushed into a period of time due to excusable delays whereby he is now required to execute work in weather conditions that he would not have normally encountered but for the existence of the earlier excusable delays, he should be entitled to further additional time and costs arising out of the reduced work productivity (which will include further prolongation costs) which he has encountered as a result of having to do work under conditions that were not foreseen at the time of Contract Award.

I have had a few experiences of this where projects are pushed into unexpected winter or summer working, and where work productivity suffers as a result.

Hope this helps.

Cheers,

Stuart

www.rosmartin.com
Shahzad Munawar
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Adverse weather condition totally belongs to Neither Party’s Default either Employer or Contractor so you may only get Extension of Time not compensation in any case.

No. of UK’s authorities and judgments are available on this issue
Andrew Flowerdew
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Nicos,

Hard to comment not knowing the complete story but when considering things take into account your own comments:

"contractors proposal" being the main one - did you not have an oppertunity to consider the weather risk when putting this proposal together exactly as per the original programme? If so, why should it be treated any differently than the original programme, and hence why should the existing contract conditions not appply?

When considering costs, yes there are direct and indirect costs as you rightly state - both however come under the same heading of consequential costs in relation to any claim - ie costs that are a consequence of the claim whatever they be.
Raja Izat Raja Ib...
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Hi Nicos,
Dont just Focus On weather, U can find more reason to claims more cost somthing like VO, No Acesss, Damage being done by other contractor and etc the only think u have to do is track back all obstruction in the schedule and compile all together.
regards
Nicos Pozatos
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Andrew,
Thank you for your comments.

In our case is clearly stibulated in the contract that "Weather conditions shall not entitle the Contractor to claim under the Additional Payment Article". But in my opinion this is valid only when working in the original duration of the contract where the contractor has priced and considered the weather risk in his performance programme.

The employer has granted an extension of time for the completion of the project in accordance with a revised scope of work based on a contractors proposal showing 4 months of rain per year. What hapens if we actually have 5 months of rain. What does it apply for the extra month of rain?

In terms of cost I think that we have to distinguish between direct and indirect cost.

- Direct cost being the reworking to repair damages from the rain.

- Indirect cost being the prologation cost. The overheads that the contractor will have to pay for a futher extended period in order to complete the works.

Andrew Flowerdew
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Nicos,

I hope you are reading these posts from bottom to top of page -

In most contracts weather will entitle to you an eot but not any money and this will most probably be the case in your contract. (but not always) An eot does not always entitle you to money and you will have to look at your contract to see -

The eot clause will often give you just that, an eot but no entitlement to anything else.

You will usually have to look at the other clauses to establish if any money is actually due.




Andrew Flowerdew
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Nicos,

I think I’ll rewrite abit of the last post!!!

The recoverable cost is:

The cost of what was actually spent doing the work in the adverse conditions which would not have been carried out in those adverse conditions except for the Employers delay

minus

What it would have cost, doing the work in the conditions in which they were originally planned to be done in.

That makes more sense!!!!!!!!
Andrew Flowerdew
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Nicos,

Ironically I have spent the afternoon reading an arbitration award which had a similar situation in it. A case quoted - Floods of Queensferry Limited & Anor v Shand Construction Limited and Others [1999] 1 BLR 326 in which this point was debated by Judge Lloyd QC, quote -

"... here I assume that work was prolonged into period of inclement weather or winter working by a breach or a breach of contract on the part of the Defendent or by additional work being required by the Defendent....

The upshot is that my present view is that some assessment must be made of the actual costs that were incurred by Floods in carrying out work in times of inclement weather or winter working. ie the costs that they incurred beyond those which they would actually have incurred had that work been done in accordance with whatever programme or sequence would havw applied and the balance or the difference between the two used to construct a percentage uplift which would then be applied to the sub contract rates...

I think that the approach to the assessment in working in periods of bad weather or winter working should be carried out on an actual basis rather than any hypothetical basis, by which I mean FCEC rates."

Unquote

ie difference in cost between carrying out what you would have been carrying out in the adverse weather event had the delay not occurred and actual costs that were incurred carrying out the work you were actually doing because of the delay. Hope that makes sense!!!!!!!!!!!

Several other cases exist that establish your right of recovery of costs if due to an Employers delay you are subject to adverse weather conditions.
Nicos Pozatos
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Dear Andrew,

Your comment that any further extension of time due adverse weather should be "under the same conditions and contract clauses as it was originally granted" is helpfull.

We have been granted an EOT with cost due to revised scope of work and I believe we should automatically get aditional eot for any rainy days during the extented period, under the same conditions, that is with cost. In addition I believe that is not necessary to prove adverse weather but just to prove that rain has affected critical works.
Andrew Flowerdew
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All,

Generally correct that eot and not money is entitlement for adverse weather. If an eot has been granted and during this period further adverse weather is experienced then the eot is simply extended to cover this period under the same conditions and contract clauses as it was originally granted.
Bill Guthrie
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Think basis for extension of time must be known.

If extension is granted due to additional works then the terms of the base contract remain valid, the change of scope is covered under same conditions as main agreement.

My word, not adverse weather in cyprus, haaaaaaaaaaa

was there last year on holiday, hot as all get out.

cheers bill
Nicos Pozatos
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Hello Bill,

You are right, the Contractor has to include the Weather Risk in his Bid. The problem comes when the contract is extended. The Employer awards X number of days for executing the remaining works, it is unlikely that he has included in this days any additional days for adverse weather, therefore he is taking the risk and the Contractor has to be compensated with time and cost for any adverse weather during the extended period.
Bill Guthrie
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adverse weather normally is addressed in the contract.
this is a issue that
1. must be considered when bidding.
2. or is not considered normal, like a typhoon,